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Counsel for the Poor the Death Penalty Sb Bright 1994

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Stephen B. Bright1
Volume 103, Yale Law Journal page 1835 (1994)
Copyright (c) 1994 by The Yale Law Journal Co., Inc.
After years in which she and her children were physically
abused by her adulterous husband, a woman in Talladega County,
Alabama, arranged to have him killed. Tragically, murders of
abusive spouses are not rare in our violent society, but seldom
are they punished by the death penalty. Yet this woman was
sentenced to death. Why?
It may have been in part because one of her court-appointed
lawyers was so drunk that the trial had to be delayed for a day
after he was held in contempt and sent to jail. The next morning,
he and his client were both produced from jail, the trial resumed,
and the death penalty was imposed a few days later.2 It may also
have been in part because this lawyer failed to find hospital records documenting injuries received by the woman and her daughter,
which would have corroborated their testimony about abuse. And it
may also have been because her lawyers did not bring their expert
witness on domestic abuse to see the defendant until 8 p.m. on the
night before he testified at trial.3
Poor people accused of capital crimes are often defended by
lawyers who lack the skills, resources, and commitment to handle
such serious matters. This fact is confirmed in case after case.
It is not the facts of the crime, but the quality of legal
representation,4 that distinguishes this case, where the death

Director, Southern Center for Human Rights, Atlanta,
Georgia; J. Skelly Wright Fellow and Visiting Lecturer in Law,
Yale Law School; B.A. 1971, J.D. 1975, University of Kentucky. The
author has been involved in representation of those facing the
death penalty at trials, on appeals, and in post conviction
proceedings since 1979. This Essay draws upon those experiences as
well as the authorities cited. The author is most grateful to
Charlotta Norby for her helpful comments and assistance.

Record at 846-49, State v. Haney, No. 7 Div. 148 (Ala. Crim.
App. 1989).

Nevertheless, both
Haney v. State, 603 So.
Alabama Supreme Court, Ex
upheld the conviction and

the Alabama Court of Criminal Appeals,
2d 368 (Ala. Crim. App. 1991), and the
parte Haney, 603 So. 2d 412 (Ala. 1992),
death sentence in the case.

The defendant's other court-appointed lawyer was later
disciplined by the Alabama Bar for neglect in two worker's compensation cases, allowing the statute of limitations to run in
both cases. Disciplinary Report, ALA. LAW., Nov. 1993, at 401.
Page 1

penalty was imposed, from many similar cases, where it was not.5
The woman in Talladega, like any other person facing the
death penalty who cannot afford counsel, is entitled to a courtappointed lawyer under the Supreme Court's decision in Powell v.
Alabama.6 But achieving competent representation in capital and
other criminal cases requires much more than the Court's
recognition, in Powell and in Gideon v. Wainwright,7 of the vital
importance of counsel and of “thoroughgoing investigation and
preparation.”8 Providing better representation today than the
defendants had in Scottsboro in 1931 requires money, a structure
for providing indigent defense that is independent of the judiciary and prosecution, and skilled and dedicated lawyers. As
Anthony Lewis observed after the Gideon decision extended the
right to counsel to all state felony prosecutions:
It will be an enormous task to bring to life the dream
of Gideon v. Wainwright—the dream of a vast, diverse
country in which every person charged with a crime will
be capably defended, no matter what his economic
circumstances, and in which the lawyer representing him
will do so proudly, without resentment at an unfair
burden, sure of the support needed to make an adequate

See, e.g., Mullis v. State, 545 So. 2d 205 (Ala. Crim. App.
1989) (person who hired others to rob, kidnap, and kill victim,
sentenced to life in prison); Busby v. State, 412 So. 2d 837 (Ala.
Crim. App. 1982) (woman charged with capital murder for hiring
others to kill her husband, but convicted of noncapital murder);
see also Thacker v. State, 556 N.E.2d 1315 (Ind. 1990) (woman who
asked three men to kill her husband, gave them money and ammunition, and formed plan with them, not sentenced to death); Murder
Victim's Family Settles Case for Cash, HUNTSVILLE TIMES, Aug. 7,
1990, at B1 (charges dropped against woman charged with capital
murder for having hired somebody to kill her boyfriend when she
agreed to surrender $30,000 in retirement benefits to the victim's

Powell v. Alabama, 287 U.S. 45 (1932). Powell involved seven
young African-Americans sentenced to death in Scottsboro, another
Alabama community north of Talladega. The Supreme Court concluded
that the defendants “did not have the aid of counsel in any real
sense” based upon the casual way in which the responsibility for
defending the case had been handled, the lack of preparation and
investigation by the two lawyers who defended the accused, and
community hostility toward the defendants. Id. at 51-57.

Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).


Powell v. Alabama, 287 U.S. at 57.



Page 2

More than sixty years after Powell and thirty years after
Gideon, this task remains uncompleted, the dream unrealized. This
Essay describes the pervasiveness of deficient representation,
examines the reasons for it, and considers the likelihood of

Arbitrary results, which are all too common in death penalty
cases, frequently stem from inadequacy of counsel. The process of
sorting out who is most deserving of society's ultimate punishment
does not work when the most fundamental component of the adversary
system, competent representation by counsel, is missing.10
Essential guarantees of the Bill of Rights may be disregarded
because counsel failed to assert them, and juries may be deprived
of critical facts needed to make reliable determinations of guilt
or punishment. The result is a process that lacks fairness and
For instance, the failure of defense counsel to present
critical information is one reason that Horace Dunkins was
sentenced to death in Alabama. Before his execution in 1989, when
newspapers reported that Dunkins was mentally retarded, at least
one juror came forward and said she would not have voted for the
death sentence if she had known of his condition.11 Nevertheless,
Dunkins was executed.
This same failure of defense counsel to present critical
information also helps account for the death sentences imposed on
Jerome Holloway—who has an IQ of 49 and the intellectual capacity
of a 7-year old—in Bryan County, Georgia,12 and William Alvin
Smith—who has an IQ of 65—in Oglethorpe County, Georgia.13 It helps
explain why Donald Thomas, a schizophrenic youth, was sentenced to

This Essay deals primarily with the problem at trial and on
direct appeal where the state is required to provide counsel for
the indigent accused. It does not analyze the equally serious
representation in postconviction review. For such a review, see
American Bar Association, Toward a More Just and Effective System
of Review in State Death Penalty Cases, 40 AM. U. L. REV. 1, 79-92
(1990). The Supreme Court has held there is no right to counsel,
even in capital cases, in postconviction review. Murray v.
Giarratano, 492 U.S. 1 (1989) (plurality opinion).

Peter Applebome, Two Electric Jolts in Alabama Execution,
N.Y. TIMES, July 15, 1989, at A6.

Holloway v. State, 361 S.E.2d 794, 796 (Ga. 1987).


Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987) (setting
aside death sentence on other grounds), aff'd sub nom. Smith v.
Zant, 887 F.2d 1407 (11th Cir. 1989) (en banc).
Page 3

death in Atlanta, where the jury knew nothing about his mental
impairment because his lawyer failed to present any evidence about
his condition.14 In each of these cases, the jury was unable to
perform its constitutional obligation to impose a sentence based
on “a reasoned moral response to the defendant's background,
character and crime,”15 because it was not informed by defense
counsel of the defendant's background and character.
It can be said confidently that the failure to present such
evidence made a difference in the Holloway, Smith, and Thomas
cases. After each was reversed—one of them for reasons having
nothing to do with counsel's incompetence—the pertinent information was presented to the court by new counsel, the death sentence
was not imposed. But for many sentenced to death, such as Horace
Dunkins, there is no second chance.
Quality legal representation also made a difference for Gary
Nelson and Frederico Martinez-Macias, but they did not receive it
until years after they were wrongly convicted and sentenced to
death. Nelson was represented at his capital trial in Georgia in
1980 by a sole practitioner who had never tried a capital case.16
The court-appointed lawyer, who was struggling with financial
problems and a divorce, was paid at a rate of only $15 to $20 per
hour.17 His request for co-counsel was denied.18 The case against
Nelson was entirely circumstantial, based on questionable
scientific evidence, including the opinion of a prosecution expert
that a hair found on the victim's body could have come from
Nelson.19 Nevertheless, the appointed lawyer was not provided funds
for an investigator20 and, knowing a request would be denied, did
not seek funds for an expert.21 Counsel's closing argument was only

Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir. 1986), cert.
denied, 479 U.S. 996 (1986).

Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting
California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J.,

David Lundy, Bondurant's Costly Death Appeal, FULTON COUNTY
DAILY REP., Aug. 18, 1989, at 6.

Id.; See also Affidavit of Howard A. McGlasson, Jr. at 6, 8,
Nelson v. Zant (Super. Ct. Butts County, Ga. 1989) (No. 5387),
rev'd, 405 S.E.2d 250 (Ga. 1991).

defined., at 7.


Id. at 6, 15.


Id. at 7.


Id. at 8.

Page 4






255 words long.22 The lawyer was later disbarred for other
Nelson had the good fortune to be represented pro bono in
postconviction proceedings by lawyers willing to spend their own
money to investigate Nelson's case.24 They discovered that the hair
found on the victim's body, which the prosecution expert had
microscopic comparison.25 Indeed, they found that the Federal
Bureau of Investigation had previously examined the hair and found
that it could not validly be compared.26 As a result of such
inquiry, Gary Nelson was released after eleven years on death row.
Frederico Martinez-Macias was represented at his capital
trial in El Paso, Texas, by a court-appointed attorney paid only
$11.84 per hour.27 Counsel failed to present an available alibi
witness, relied upon an incorrect assumption about a key
evidentiary point without doing the research that would have
corrected his erroneous view of the law, and failed to interview
and present witnesses who could have testified in rebuttal of the
prosecutor's case.28 Martinez-Macias was sentenced to death.
Martinez-Macias received competent representation for the
first time when a Washington, D.C., firm took his case pro bono.
After a full investigation and development of facts regarding his
innocence, Martinez-Macias won federal habeas corpus relief.29 An
El Paso grand jury refused to re-indict him and he was released
after nine years on death row.30

Lundy, supra note 15, at 6.




Id. Georgia does not provide counsel for condemned inmates
in postconviction proceedings. Nelson was represented first by a
lawyer recruited by the NAACP Legal Defense and Educational Fund
who sent the record to a lawyer at another firm, which took the
case for postconviction proceedings. Id. Because of his poverty,
Nelson was completely at the mercy of these forces with regard to
whether he would be represented and the quality of that
representation. Many are not as fortunate as Nelson.



Nelson v. Zant, 405 S.E.2d at 252.


Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).


Martinez-Macias v. Collins, 810 F. Supp. 782, 786-87, 796813 (W.D. Tex. 1991), aff'd, 979 F.2d 1067 (5th Cir. 1992).

Id. at 823.


Gordon Dickinson, Man Freed in Machete Murder Case, EL PASO
TIMES, June 24, 1993, at 1.
Page 5

Inadequate representation often leaves the poor without the
protections of the Bill of Rights. An impoverished person was
sentenced to death in Jefferson County, Georgia, in violation of
one of the most basic guarantees of our Bill of Rights—the right
to a representative jury selected without discrimination on the
basis of race.31 African-Americans make up 54.5% of the population
of that county, but the jury pool was only 21.6% black, a severe
under-representation of over 50%.32 But this issue was not properly
raised and preserved by the court-appointed lawyer for the
accused. The defendant had the extreme misfortune of being represented—over his protests—by a court-appointed lawyer who, when
later asked to name the criminal law decisions from any court with
which he was familiar, could name only two: “Miranda and Dred
Scott.”33 As a result of the lawyer's failure to challenge the
racial discrimination at or before trial, the reviewing courts
held that the defendant was barred from vindication of his
constitutional rights.34
The difference that representative juries and competent
counsel make in capital cases is illustrated by the cases of two
codefendants, John Eldon Smith and Rebecca Machetti. They were
sentenced to death by unconstitutionally composed juries within a
few weeks of each other in Bibb County, Georgia.35 Machetti's
lawyers challenged the jury composition in state court; Smith's
lawyers did not because they were unaware of the Supreme Court
decision prohibiting gender discrimination in juries.36

U.S. CONST. amends. VI, XIV; Strauder v. West Virginia, 100
U.S. 303 (1879); see also Whitus v. Georgia, 385 U.S. 545 (1967).

Birt v. Montgomery, 725 F.2d 587, 598 n.25 (11th Cir. 1984),
cert. denied, 469 U.S. 874 (1984).

Transcript of Hearing of April 25-27, 1988, at 231, State v.
Birt (Super. Ct. Jefferson County, Ga. 1988) (No. 2360). The
lawyer referred to Miranda v. Arizona, 384 U.S. 436 (1966), and
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott
was not a criminal case.

Birt v. Montgomery, 725 F.2d at 601.


Georgia's “opt-out” provision allowing women to decline jury
underrepresentation of women. Machetti v. Linahan, 679 F.2d 236,
241 (11th Cir. 1982), cert. denied, 459 U.S. 1127 (1983) (applying
Duren v. Missouri, 439 U.S. 357 (1979), and Taylor v. Louisiana,
419 U.S. 522 (1975)).

Because Smith and Machetti were tried within a few weeks of
each other in the same county, “the Georgia provision applied to
both juries.” Smith v. Kemp, 715 F.2d 1459, 1469 (11th Cir.),
application for cert. denied, 463 U.S. 1344, 1345, cert. denied,
464 U.S. 1003 (1983). Smith's lawyers were unaware of the Supreme
Page 6

A new trial was ordered for Machetti by the federal court of
appeals.37 At that trial, a jury which fairly represented the
community imposed a sentence of life imprisonment.38 The federal
courts refused to consider the identical issue in Smith's case
because his lawyers had not preserved it.39 He was executed,
becoming the first person to be executed under the Georgia death
penalty statute upheld by the U.S. Supreme Court in 1976.40 Had
Machetti been represented by Smith's lawyers in state court and
Smith by Machetti's lawyers, Machetti would have been executed and
Smith would have obtained federal habeas corpus relief.
In these examples, imposition of the death penalty was not so
much the result of the heinousness of the crime or the
incorrigibility of the defendant—the factors upon which imposition
of capital punishment supposedly is to turn—but rather of how bad
the lawyers were. In consequence, a large part of the death row
population is made up of people who are distinguished by neither
their records nor the circumstances of their crimes, but by their
abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received.
A member of the Georgia Board of Pardons and Paroles has said
that if the files of 100 cases punished by death and 100 punished
by life were shuffled, it would be impossible to sort them out by
sentence based upon information in the files about the crime and
the offender.41 A justice of the Mississippi Supreme Court made the
same observation about the imposition of death sentences in his
state in testimony before the U.S. Senate Judiciary Committee:
I dare say I could take every death sentence case
that we have had where we have affirmed, give you the
facts and not tell you the outcome, and then pull an
equal number of murder cases that have been in our
system, give you the facts and not tell you the outcome, and challenge you to pick which ones got the
death sentence and which ones did not, and you couldn't
Court's decision in Taylor v. Louisiana, 419 U.S. 522 (1975),
decided six days before Smith's trial started. Smith v. Kemp, 715
F.2d at 1470.

Machetti v. Linahan, 679 F.2d at 242.


Smith v. Kemp, 715 F.2d at 1476 (Hatchett, J., concurring in
part and dissenting in part).

Id. at 1469-72; see also id. at
concurring in part and dissenting in part).





Gregg v. Georgia, 428 U.S. 153 (1976).


Tracy Thompson, Once `Unfit To Live,' Ex-Death-Row Inmates
Winning Parole, ATLANTA CONST., Mar. 12, 1987, at A1.
Page 7

do it.42
Although it has long been fashionable to recite the
disgusting facts of murder cases to show how deserving of death
particular defendants may be,43 such renditions fail to answer
whether the selection process is a principled one based on
neutral, objective factors that provide a “meaningful basis for
distinguishing the few cases in which the [death] penalty is
imposed from the many cases in which it is not.”44 Virtually all
murders involve tragic and gruesome facts. However, the death
penalty is imposed, on average, in only 250 cases of the
approximately 20,000 homicides that occur each year in the United
States.45 Whether death is imposed frequently turns on the quality
of counsel assigned to the accused.
Inadequate legal representation does not occur in just a few
capital cases. It is pervasive in those jurisdictions which
account for most of the death sentences.
The American Bar
Association concluded after an exhaustive study of the issues that
“the inadequacy and inadequate compensation of counsel at trial”
was one of the “principal failings of the capital punishment
systems in the states today.”46 Justice Thurgood Marshall observed

Habeas Corpus Reform: Hearings Before the Comm. on the
Judiciary, 101st Cong., 1st & 2d Sess. 349 (1989-90) (statement of
Justice James Robertson of the Supreme Court of Mississippi).

See, e.g., Callins v. Collins, 62 U.S.L.W. 3546 (Feb. 22,
1994) (Scalia, J., concurring in the denial of certiorari).

Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980) (quoting
Gregg v. Georgia, 428 U.S. 153, 188 (1976) (quoting Furman v.
Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring))).

Fewer than 300 death sentences have been imposed each year
in the United States over the last 20 years. U.S. DEP'T OF JUSTICE,
(1992). There have been approximately 20,000 homicides in each of
those years. Id. at 357, Table 3.122; see also id. at 539, Table
5.72 (death imposed in one percent of murder cases in 75 largest

American Bar Association, supra note 9, at 16. The ABA's
report illustrates the pervasiveness of the problem:
punishment has been marred by examples of inadequate
representation ranging from virtually no representation
at all by counsel, to representation by inexperienced
counsel, to failures to investigate basic threshold
questions, to lack of knowledge of governing law, to
Page 8

that “capital
having trial
capital cases

defendants frequently suffer the consequences of
counsel who are ill equipped to handle capital
National Law Journal, after an extensive study of
in six Southern states, found that capital trials

lack of advocacy on the issue of guilt, to failure to
present a case for life at the penalty phase. . . .
. . . Defense representation is not necessarily
better in other death penalty states.
In Tennessee,
for another example, defense lawyers offered no
evidence in mitigation in approximately one-quarter of
all death sentences affirmed by the Tennessee Supreme
Court since the Tennessee legislature promulgated its
current death penalty statute.
Id. at 65-67. Among the cases cited by the ABA in support of its
description of the inadequate representation in Georgia are:
Thomas v. Kemp, 796 F.2d 1322, 1324-25 (11th Cir. 1986) (counsel
failed to present any evidence in mitigation), cert. denied, 479
U.S. 996 (1986); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985),
cert. denied, 474 U.S. 998 (1985) (counsel failed to present any
evidence in mitigation); Tyler v. Kemp, 755 F.2d 741 (11th Cir.
1985) (counsel had been a member of the bar for only six months
prior to his appointment), cert. denied, 474 U.S. 1026 (1985);
House v. Balkcom, 725 F.2d 608 (11th Cir. 1984) (counsel not even
present during portions of capital trial), cert. denied, 469 U.S.
870 (1984); Francis v. Spraggins, 720 F.2d 1190 (11th Cir. 1983)
(counsel conceded guilt at closing argument of guilt phase);
Goodwin v. Balkcom, 684 F.2d 794, 817-20 (11th Cir. 1982) (counsel
unaware of law, distanced himself from client, and otherwise
failed to render effective assistance), cert. denied, 460 U.S.
1098 (1983); Young v. Zant, 677 F.2d 792, 795 (11th Cir. 1982)
(counsel failed to provide “even a modicum of professional
assistance at any time” during capital trial); Mathis v. Zant, 704
F. Supp. 1062, 1064 (N.D. Ga. 1989) (“In addition to betraying his
duty to present what evidence he could on petitioner's behalf,
[counsel] delivered a closing argument that the Court in its prior
order generously termed an `apology for having served as
[petitioner's] counsel'”); Johnson v. Kemp, 615 F. Supp. 355, 364
(S.D. Ga. 1985) (counsel failed to present evidence in
mitigation), aff'd without opinion, 781 F.2d 1483 (11th Cir.
1986); Cury v. Zant, 371 S.E.2d 647 (Ga. 1988) (counsel failed to
get independent psychiatric evaluation of defendant to determine
mental competency).

Thurgood Marshall, Remarks on the Death Penalty Made at the
Judicial Conference of the Second Circuit, 86 COLUM. L. REV. 1, 1-2
(1986). Justice Marshall noted that “[t]he federal reports are
filled with stories of counsel who presented no evidence in
mitigation of their clients' sentences because they did not know
what to offer or how to offer it, or had not read the state's
sentencing statute.” Id.
Page 9

are “more like a random flip of the coin than a delicate balancing
of the scales” because the defense lawyer is too often “ill
trained, unprepared . . . [and] grossly underpaid.”48
observers from a variety of perspectives and from different states
have found the same scandalous quality of legal representation.49
These assessments are supported by numerous cases in which
the poor were defended by lawyers who lacked even the most
rudimentary knowledge, resources, and capabilities needed for the
defense of a capital case. Death sentences have been imposed in
cases in which defense lawyers had not even read the state's death
penalty statute or did not know that a capital trial is bifurcated
into separate determinations of guilt and punishment.50 State trial

Marcia Coyle et al., Fatal Defense: Trial and Error in the
Nation's Death Belt, NAT. L.J., June 11, 1990, at 30. Twelve
articles examining the quality of representation in numerous cases
in the six states appear in id., at 30-44.

Witnesses before an ABA Task Force studying the capital
punishment system described the current state of affairs for
`abysmal,' `pathetic,' 'deplorable,' and `at best, exceedingly
uneven.'” American Bar Association, supra note 9, at 69; see also
Ruth E. Friedman & Bryan A. Stevenson, Solving Alabama's Capital
Defense Problems: It's a Dollars and Sense Thing, 44 ALA. L. REV.
1, 32-37 (1992); Bruce A. Green, Lethal Fiction: The Meaning of
“Counsel” in the Sixth Amendment, 78 IOWA L. REV. 433, 491-99
(1993); Tom Wicker, Defending the Indigent in Capital Cases, 2
CRIM. JUSTICE ETHICS 2 (1983); Jeanne Cummings, Bad Lawyers Tip the
Scales of Justice Toward Death Row, ATLANTA J.-CONST., April 1,
1990, at A1; Anthony Lewis, Crime in Politics, N.Y. TIMES, Oct. 1,
1990, at A21; Andrea Neal, Death Row Inmates Point to Poor Quality
of Lawyers Who Defend Them, L.A. TIMES, Oct. 29, 1986, at 12;
Frederic N. Tulsky, What Price Justice? Poor Defendants Pay the
Cost as Courts Save on Murder Trials, PHILA. INQUIRER, Sept. 13,
1992, at A1 [hereinafter Tulsky, What Price Justice?]; Frederic N.
Tulsky, Big-Time Trials, Small Time Defenses, PHILA. INQUIRER, Sept
14, 1992, at A1 [hereinafter Tulsky, Big-Time Trials] ; Andrew
Wolfson & Susan Craighead, Effectiveness of Lawyers in Capital
Cases Is Questioned, COURIER J., Nov. 18, 1990, at 1, 23.

A lawyer in one Georgia case conceded his client's guilt and
argued for a life sentence at the guilt phase; he continued to
plead for mercy even after he was admonished by the trial judge to
save his argument on punishment for the sentencing phase. Young
v. Zant, 677 F.2d 792, 797 (11th Cir. 1982). A judge in a Florida
case took a defense lawyer in chambers during the penalty phase to
explain what it was about. The lawyer responded: “I'm at a loss.
I really don't know what to do in this type of proceeding. If I'd
been through one, I would, but I've never handled one except this
Douglas v. Wainwright, 714 F.2d 1532, 1556 (11th Cir.
1983), vacated and remanded, 468 U.S. 1206 (1984), on remand, 739
Page 10

judges and prosecutors—who have taken oaths to uphold the law,
including the Sixth Amendment—have allowed capital trials to
proceed and death sentences to be imposed even when defense
counsel fought among themselves or presented conflicting defenses
for the same client,51 referred to their clients by a racial slur,52
cross-examined a witness whose direct testimony counsel missed
because he was parking his car,53 slept through part of the trial,54
or was intoxicated during trial.55 Appellate courts often review
F.2d 531 (11th Cir. 1984), and cert. denied, 469 U.S. 1208 (1985).
An Alabama defense lawyer asked for time between the guilt and
penalty phases so that he could read the state's death penalty
statute. Record at 1875-76, State v. Smith, 581 So. 2d 497 (Ala.
Crim. App. 1990). The lawyer in a Pennsylvania case tailored his
presentation of evidence and argument around a death penalty
statute that had been declared unconstitutional three years
earlier because it limited the arguments on which the defense
could rely as to mitigating circumstances. Frey v. Fulcomer, 974
F.2d 348, 359 (3d Cir. 1992) (reversing finding of ineffective
assistance of counsel).

In one Alabama case, one defense lawyer sued co-counsel over
attorneys fees before trial and the attorneys were in conflict
over personal differences during trial. Daniel v. Thigpen, 742 F.
Supp. 1535, 1558-59 (M.D. Ala. 1990); Friedman & Stevenson, supra
note 48, at 34. In a Georgia case, one attorney presented an
incredible alibi defense while the other asserted a mental health
defense that acknowledged the accused's participation in the
crime. Ross v. Kemp, 393 S.E.2d 244, 245 (Ga. 1990).

Goodwin v. Balkcom, 684 F.2d 794, 805 n.13 (11th Cir. 1982)
(defendant called a “little old nigger boy” in closing argument by
defense counsel); Ex parte Guzmon, 730 S.W.2d 724, 736 (Tex. Crim.
App. 1987) (Mexican client referred to as “wet back” in front of
all-white jury by defense counsel); Record Excerpts at 102, Dungee
v. Kemp, (11th Cir.) No. 85-8202 (defendant called “nigger” by
defense counsel), decided sub nom. Isaacs v. Kemp, 778 F.2d 1482
(11th Cir. 1985), cert. denied 476 U.S. 1164 (1986).

House v. Balkcom, 725 F.2d 608, 612 (11th Cir. 1984), cert.
denied, 469 U.S. 870 (1984).

A judge in Harris County, Texas, responding to a capital
defendant's complaints about his lawyer sleeping during the trial
at which death was imposed, stated: “The Constitution does not say
that the lawyer has to be awake.” John Makeig, Asleep on the Job;
Slaying Trial Boring, Lawyer Said, HOUS. CHRON., Aug. 14, 1992, at
A35. Defense counsel was found to have slept during a capital
trial in Harrison v. Zant, No. 88-V-1640, Order at 2 (Super. Ct.
Butts County, Ga. Oct. 5, 1990), aff'd, 402 S.E.2d 518 (Ga. 1991).

People v. Garrison, 254 Cal. Rptr. 257 (1986). Counsel, an

Page 11

and decide capital cases on the basis of appellate briefs that
would be rejected in a first-year legal writing course in law
There are several interrelated reasons for the poor quality
of representation in these important cases. Most fundamental is
the wholly inadequate funding for the defense of indigents. As a
result, there is simply no functioning adversary system in many
states. Public defender programs have never been created or
alcoholic, was arrested en route to court one morning and found to
have a blood alcohol level of 0.27. Yet the court was unwilling to
create a presumption against the competence of attorneys under the
influence of alcohol.

See, e.g., Morgan v. Zant, 743 F.2d 775, 780 (11th Cir.
1984) (Georgia Supreme Court affirmed death sentence after
receiving brief that contained only five pages of argument and was
filed only in response to threat of sanctions against the lawyer);
Banda v. State, 768 S.W.2d 294, 297 (Tex. Crim. App. 1989)
(dissent notes that court-appointed counsel raised a single point
of error and the substantive portion of the brief was 150 words);
Modden v. State, 721 S.W.2d 859, 860 n.1 (Tex. Crim. App. 1986)
(“the points of error are multifarious, contain incomplete or no
citations to the record, and fail to state an adequate legal basis
upon which complaint is made”); Brief and Argument in Support of
Petition for Writ of Certiorari, Ex parte Heath, 455 So. 2d 905
(Ala. 1984) (No. 4 Div. 134) (one page of argument, raising a
single issue and citing one case) (set out in full in note 154
infra); Brief for Appellant, Thomas v. State, 266 S.E.2d 499 (Ga.
1980) (No. 36046) (six pages of poorly written argument, citing
only nine cases, which failed to raise issues regarding mental
incompetence of the defendant, lack of any counsel at the
preliminary hearing, mental competency of the state's two key
witnesses, vagueness of the aggravating circumstance on which the
death sentence rested, and other issues that were later raised in
a brief of 70 pages which cited 96 cases in the postconviction
appeal of the case to the Eleventh Circuit); see also In re Dale,
247 S.E.2d 246, 248 (N.C. Ct. App. 1978) (due to financial
considerations, attorney did not file appeal in capital case);
Docket Entry of July 8, 1983, of Clerk of Alabama Court of
Criminal Appeals, State v. Waldrop, 459 So. 2d 959 (Ala. Crim.
App. 1984) (No. 7 Div. 133) (clerk wrote a letter to appellate
counsel, who had not cited any authority in his brief, asking him
to include some citation to authority; counsel sent a list of
cases); Brief of Appellant, Morrison v. State, 373 S.E.2d 506 (Ga.
1988) (No. 45572) (two pages of argument, citing two cases); Brief
of Appellant, Newland v. State, 366 S.E.2d 689 (Ga. 1988) (No.
45264) (62-page digest of the transcript, followed by only three
pages of argument, citing not a single case); Brief of Appellant,
Cohen v. State, 361 S.E.2d 373 (Ga. 1987) (No. 44457) (four pages
of argument, citing two cases).
Page 12

properly funded in many jurisdictions. The compensation provided
to individual court-appointed lawyers is so minimal that few
accomplished lawyers can be enticed to defend capital cases. Those
who do take a capital case cannot afford to devote the time
required to defend it properly. As a result, the accused are
usually represented by lawyers who lack the experience, expertise,
and resources of their adversaries on the prosecution side.
Many state court judges, instead of correcting this
imbalance, foster it by intentionally appointing inexperienced and
incapable lawyers to defend capital cases, and denying funding for
essential expert and investigative needs of the defense. The
minimal standard of legal representation in the defense of poor
people, as currently interpreted by the Supreme Court, offers
little protection to the poor person stuck with a bad lawyer.

A. The Lack of a Functioning Adversary System
Many death penalty states have two state-funded offices that
specialize in handling serious criminal cases. Both employ
attorneys who generally spend years—some even their entire
careers—handling criminal cases. Both pay decent annual salaries
and provide health care and retirement benefits. Both send their
employees to conferences and continuing legal education programs
each year to keep them up to date on the latest developments in
the law. Both have at their disposal a stable of investigative
agencies, a wide range of experts, and mental health professionals
anxious to help develop and interpret facts favorable to their
side. Unfortunately, however, in many states both of these offices
are on the same side: the prosecution.
One is the District Attorney's office in each judicial
district, whose lawyers devote their time exclusively to handling
criminal matters in the local court systems. These lawyers acquire
considerable expertise in the trial of criminal cases, including
capital cases. There are, for example, prosecutors in the District
Attorney's office in Columbus, Georgia, who have been trying death
penalty cases since the state's current death penalty statute was
adopted in 1973.
The other office is the state Attorney General's office,
which usually has a unit made up of lawyers who specialize in
handling the appeals of criminal cases and habeas corpus matters.
Here, too, lawyers build expertise in handling capital cases. For
example, the head of the unit that handles capital litigation for
the Georgia Attorney General has been involved in that work since
1976, the same year the Supreme Court upheld Georgia's death
penalty statute. She brings to every case a wealth of expertise
developed in 17 years of litigating capital cases in all the state
and federal courts involved in Georgia cases. She and her staff
are called upon by district attorneys around the state for consultation on pending cases and, on occasion, will assist in trial
work. It is the normal practice in Georgia that briefs by both the
district attorney and the attorney general are filed with the
Georgia Supreme Court on the direct appeal of a capital case.
The specialists in the offices of both the district attorneys
Page 13

and the attorneys general have at their call local, state, and,
when needed, federal investigative and law enforcement agencies.
They have a group of full-time experts at the crime laboratory and
in the medical examiner's offices to respond to crime scenes and
provide expert testimony when needed. If mental health issues are
raised, the prosecution has a group of mental health professionals
at the state mental facilities. No one seriously contends that
these professional witnesses are objective. They routinely testify
for the prosecution as part of their work, and prosecutors enjoy
longstanding working relationships with them.
In Alabama, Georgia, Mississippi, Louisiana, Texas, and many
other states with a unique fondness for capital punishment, there
is no similar degree of specialization or resources on the other
side of capital cases. A poor person facing the death penalty may
be assigned an attorney who has little or no experience in the
defense of capital or even serious criminal cases,57 one reluctant
or unwilling to defend him,58 one with little or no empathy or
understanding of the accused or his particular plight,59 one with

See, e.g., Paradis v. Arave, 954 F.2d 1483, 1490-91 (9th
Cir. 1992) (defendant represented at capital trial by lawyer who
had passed the bar six months earlier, had tried no criminal
cases, and had not taken any courses in criminal law, criminal
procedure, or trial advocacy in law school); Tyler v. Kemp, 755
F.2d 741, 743 (11th Cir.) (defendant represented at Georgia trial
by attorney with little criminal law experience who had been
admitted to the bar just a few months before trial), cert. denied,
474 U.S. 1026 (1985); Bell v. Watkins, 692 F.2d 999, 1008 (5th
Cir. 1982) (defendant represented at Mississippi capital trial by
attorney who had recently graduated from law school and never
tried a criminal case all the way to verdict); State v. Wigley,
624 So. 2d 425, 427 (La. 1993) (three of four attorneys appointed
to defend two defendants “were civil practitioners with little
criminal law experience”); Parker v. State, 587 So. 2d 1072, 110003 (Ala. Crim. App. 1991) (defense lawyers asserted they were
inexperienced in defense of criminal cases and incompetent to
handle a capital case in unsuccessful attempt to withdraw); State
v. Leatherwood, Miss. S. Ct. No. DP-70 (trial transcript)
(defendant in capital case represented by third-year law student
and attorney), rev'd on other grounds, 548 So. 2d 389 (Miss.

See, e.g., Coleman v. Kemp, 778 F.2d 1487, 1494, 1495, 1503,
1516, 1522 (11th Cir. 1985) (one attorney appointed to defend
capital cases claimed the appointment was “the worst thing that's
ever happened to me professionally”; another stayed on the case
because “[t]o refuse would be contempt of court”), cert. denied,
476 U.S. 1164 (1986).

An African-American facing the death penalty in Walker
County, Georgia, was represented by a white defense attorney whose
attitudes on race were described as follows by a federal district
Page 14

little or no knowledge of criminal or capital punishment law, or
one with no understanding of the need to document and present
mitigating circumstances.60 Although it is widely acknowledged that
at least two lawyers, supported by investigative and expert
assistance, are required to defend a capital case, some of the
jurisdictions with the largest number of death sentences still
assign only one lawyer to defend a capital case.61
In contrast to the prosecution's virtually unlimited access
to experts and investigative assistance, the lawyer defending the
indigent accused in a capital case may not have any investigative
or expert assistance to prepare for trial and present a defense. A
study of twenty capital cases in Philadelphia in 1991 and 1992
found that the court “paid for investigators in eight of the
twenty cases, spending an average of $605 in each of the eight”
and that the court “paid for psychologists in two of them, costing
$400 in one case, $500 in the other.”62 It is impossible even to
court before concluding that the lawyer had not rendered
ineffective assistance:
Dobbs' trial attorney was outspoken about his views. He said
that many blacks are uneducated and would not make good teachers,
but do make good basketball players. He opined that blacks are
less educated and less intelligent than whites either because of
their nature or because “my grand-daddy had slaves.” He said that
integration has led to deteriorating neighborhoods and schools,
and referred to the black community in Chattanooga as “black boy
jungle.” He strongly implied that blacks have inferior morals by
relating a story about sex in a classroom. He also said that when
he was young, a maid was hired with the understanding that she
would steal some items. He said that blacks in Chattanooga are
more troublesome than blacks in Walker County [Georgia] . . . .
Dobbs v. Zant, 720 F. Supp. 1566, 1577 (N.D. Ga. 1989) (denying
habeas corpus relief), aff'd, 963 F.2d 1519 (11th Cir. 1991),
remanded, 113 S. Ct. 835 (1993). Defendants in other cases have
been referred to by their lawyers with racial slurs. See supra
note 51.

See supra notes 10-13 and accompanying text.


In Texas, which has the second largest death row in the
nation and has carried out more executions than any other state,
the accused is given only one lawyer in many cases. THE SPANGENBERG
(prepared for the State Bar of Texas). In Philadelphia, where the
number of people sentenced to death is greater than the combined
death rows of 21 of the 36 states which have the death penalty, a
capital case is often defended by a single attorney. See Michael
DeCourcy Hinds, Circumstances in Philadelphia Consign Killers,
N.Y. TIMES, June 8, 1992, at K1; Tulsky, What Price Justice?,
supra note 48, at A18.

Tulsky, What Price Justice?, supra note 48, at A18.

Page 15

begin a thorough investigation or obtain a comprehensive mental
health evaluation for such paltry amounts.
Although the Supreme Court has held that indigent defendants
may be entitled to expert assistance in certain circumstances,63
defense attorneys often do not even request such assistance
because they are indifferent or know that no funds will be
investigation and experts by requiring an extensive showing of
need that frequently cannot be made without the very expert
assistance that is sought.65 Many lawyers find it impossible to

Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (indigent defendant
has a right to mental health expert where mental health issues are
a “significant factor” at trial); see, e.g., Smith v. McCormick,
914 F.2d 1153, 1157 (9th Cir. 1990) (“The right to psychiatric
assistance. . . means the right to use the services of a
appropriate . . . .”).

A survey of lawyers and judges in Texas found that
approximately one-half of the attorneys who had handled a capital
case and 33% of judges who had recently presided over a capital
case indicated that resources were inadequate to pay expert
witnesses and attorneys. THE SPANGENBERG GROUP, supra note 60, at 159;
see, e.g., Jeff Rosenzweig, The Crisis in Indigent Defense: An
Arkansas Commentary, 44 ARK. L. REV. 409, 410 (1991) (describing
the dilemma of an Arkansas attorney in a capital case who needed a
psychiatrist to examine a defendant who had previously been
diagnosed as schizophrenic; the lawyer was first told by the judge
to find a mental health expert closer to home and then denied
funds after he located a local psychologist).

In response to the denial of expert assistance for failure
to make a sufficient showing in one case, Judge Frank M. Johnson,
Jr. pointed out for the dissenters: “[H]ow could [counsel] know if
he needed a microbiologist, an organic chemist, a urologist, a
hematologist, or that which the state used, a serologist? How
further could he specify the type of testing he needed without
first hiring an expert to make that determination?” Moore v. Kemp,
809 F.2d 702, 743 (11th Cir. 1987) (Johnson, J., concurring in
part and dissenting in part); see also Stephens v. Kemp, 846 F.2d
642, 646 (11th Cir.) (upholding denial of ballistics expert
because of insufficient showing by defense counsel of need for
expert), cert. denied, 488 U.S. 872 (1988); Messer v. Kemp, 831
F.2d 946 (11th Cir. 1987) (en banc) (although the only issue at
both guilt and penalty phases was insanity and defense counsel
made numerous motions for an independent psychiatrist, denial of
expert assistance was upheld because of the vague nature of
defense counsel's request and counsel's failure to provide any
factual basis for his belief that defendant had psychiatric
problems), cert. denied, 485 U.S. 1029 (1988).
Page 16

maneuver around this “Catch 22,”66 but even when a court recognizes
the right to an expert, it often authorizes so little money that
no competent expert will get involved.67
An indigent accused facing the death penalty in Columbus,
Georgia, was assigned counsel by the local trial judge, a former
district attorney who had tried high profile capital cases on the
way to becoming a judge.68 Neither of the two lawyers appointed had
ever tried a capital case before. The lawyers were denied any
funds for an investigator or expert assistance. The case was
prosecuted by an assistant district attorney with over fifteen
years of experience in trying capital and other criminal cases.
The defense was unable to investigate the case or present any
expert testimony in response to the state's fingerprint and
identification technicians, ballistics expert, coroner, and
medical examiner.
An Alabama attorney, appointed without co-counsel and granted
only $500 for expert and investigative expenses to defend a highly
publicized capital case, facing three prosecutors and an array of
law enforcement agencies and expert witnesses, described his
Without more than $500, there was only one choice,
and that is to go to the bank and to finance this
litigation, myself, and I was just financially unable
to do that. It would have cost probably in excess of
thirty to forty thousand dollars, and I just could not
justify taking those funds from my practice, or my
family at that time.69

In dissenting in Moore v. Kemp, Judge Johnson observed:
“[T]he majority's reading of Ake creates a proverbial `Catch 22,'
making it impossible for all but the most nimble (and prescient)
defendant[s] to obtain expert assistance.” 809 F.2d at 742
(Johnson, J., dissenting).

For example, a review of capital cases in Philadelphia
suggested experts were unwilling to consult with defense lawyers
because of the meager compensation. Tulsky, What Price Justice?,
supra note 48, at A1, A18. One expert observed to a group of
defense lawyers that she made more than they did. Id. Another, a
University of Pennsylvania professor who takes cases for defense
lawyers outside Philadelphia, explained his refusal to be retained
by court-appointed counsel in capital cases in Philadelphia: “I
like to choose my charities. . . . This is a bad system, and
unfair to the defendant.” Id.

State v. Walker, No. 89 CR 56742-2 (Super. Ct. Muscogee
County, Ga., 1991), rev'd on other grounds, 424 S.E.2d 782 (Ga.

Deposition of Richard Bell at 24-25, Grayson v. State (Cir.
Ct. Shelby County, Ala., Oct. 10, 1991) (No. CV 86-193).
Page 17

Not surprisingly, the attorney was simply unable to investigate
the case properly:
I could not take days at a time out of my office
to do essentially non-legal work. And investigation is
necessary, certainly, to prepare a case, but it is nonlegal. . . . You're actually pounding the pavement,
trying to come up with the same information that a
person who is paid substantially less per hour could
take care of, I mean, whether it be the investigator
for the Sheriff's Department or the District Attorney's
office or the F.B.I., or the U.S. Attorney's office.
You don't find the U.S. Attorney pounding the pavement,
trying to investigate facts. . . . And it just creates
a terrible situation when you have to do everything for
As a result, much of the investigation simply was not done and
critical evidence was not presented.71 With regard to the lack of
funds for expert witnesses, the lawyer testified that in civil
cases, which constituted ninety percent of his caseload, he would
have hired the required experts because failure to do so would
have constituted malpractice.72
An attorney involved in the defense of many capital cases in
Arkansas has described how lawyers in that state are forced to
perform “a sort of uninformed legal triage,” ignoring some issues,
lines of investigation, and defenses because of the lack of
adequate compensation and resources.73 He described the costs of
such an approach: “The lawyer pays some in reputation, perhaps,
but it is his client who must pay with his liberty or life.”74
The adversary system often breaks down at the appellate level
as well.
The poor defendant usually does not receive
representation equal to that of the prosecution in a state like
Georgia, where on direct appeal of capital cases, specialists in
the offices of the Attorney General and District Attorney both
file briefs for the state. The poor person sentenced to death may
be represented by a lawyer with little or no appellate experience,
no knowledge of capital punishment law, and little or no incentive
or inclination to provide vigorous advocacy. For example, in one
Georgia case, the court-appointed attorney filed a brief

Id. at 62-63.


Id. at 56-59.


Id. at 29-31, 46-48.


Rosenzweig, supra note 63, at 412.



Page 18

containing only five pages of argument, and that only after the
Georgia Supreme Court threatened to impose sanctions.75 The lawyer
did not raise as an issue the trial court's charge to the
sentencing jury, which was later found by the U.S. Court of
Appeals to have violated the Constitution, did not appear for oral
argument, and did not file a supplemental brief on the jury
instruction issue even after requested to do so by the court.76
Nevertheless, the Georgia Supreme Court did not appoint other
counsel or require adequate briefing. Instead, with nothing more
before it than counsel's deficient performance, the court upheld
the conviction and death sentence.77 The death sentence was later
set aside by the U.S. Court of Appeals.78 There have been numerous
other instances of grossly deficient representation on appeal in
cases of those condemned to die.79

B. The Lack of Indigent Defense Programs
In many jurisdictions where capital punishment is frequently
imposed, there are no comprehensive public defender systems whose
resources can parallel the prosecutorial functions of the district
attorneys' offices.80 There are no appellate defender offices that

Morgan v. Zant, 743 F.2d 775, 780 (11th Cir. 1984).




State v. Morgan, 246 S.E.2d 198 (Ga. 1978), cert. denied,
441 U.S. 967 (1979).

Morgan v. Zant, 743 F.2d 775 (11th Cir. 1984).


For other examples of deficient representation on appeal see
supra note 55.

Only 11 of the 36 states which have the death penalty have
statewide public defender programs. THE SPANGENBERG GROUP, supra note
60, at 122, 125. Some of those state public defender programs have
specialized full-time capital litigation groups that provide
representation in capital cases at trial. Id. Two of those states,
New Hampshire and Wyoming, have no one under death sentence. Id.
1993). Eight of the states with statewide defense programs have
death rows that are comparatively small: Connecticut (5); Delaware
(16); Maryland (14); New Jersey (9); New Mexico (1). Id. at 17,
27, 25, 28, 29. This leaves two states with large death row
populations, Ohio (127) and Missouri (83), with statewide programs
and capital litigation sections. Id. at 26, 29; THE SPANGENBERG GROUP,
supra note 60, at 122. Florida and California, which have two of
the country's three largest death rows, have public defender
programs, but many capital cases in those states are handled by
assigned counsel outside of the public defender system. Florida
has an elected public defender in each judicial circuit. Id. at
122-23. California has county public defender agencies in all of
Page 19

parallel the function of the capital litigation sections of the
attorneys general's offices. In fact, there is no coherent system
at all, but a hodgepodge of approaches that vary from county to
In many jurisdictions, judges simply appoint members of the
bar in private practice to defend indigents accused of crimes.81
The lawyers appointed may not want the cases,82 may receive little
or no compensation for the time and expense of handling them,83 may
lack any interest in criminal law, and may not have the skill to
defend those accused of a crime. As a result, the poor are often
responsibilities as unwanted burdens, have no inclination to help
their clients, and have no incentive to develop criminal trial
skills. Lawyers can make more money doing almost anything else.
Even many lawyers who have an interest in criminal defense work
its major counties. Id. at 123. Even though these programs cannot
handle the huge volume of capital cases in those states, they have
annual training programs and provide materials which improve the
quality of representation in those states. No similar programs
exist in Texas or many other states with large death row

Richard Klein, The Eleventh Commandment: Thou Shalt Not Be
Compelled To Render the Ineffective Assistance of Counsel, 68 IND.
L.J. 363, 370 (1993).

For example, indigent defense boards in Louisiana maintain
lists of “volunteer” and “non-volunteer” lawyers and may appoint
counsel from either list. LA. REV. STAT. ANN. § 15:145(A),
(B)(1)(a) (West 1992); State v. Wigley, 624 So. 2d 425 (La. 1993)
(involving four “non-volunteer” attorneys, three of whom had
little criminal law experience, appointed without compensation to
defend two defendants facing death penalty); State v. Clark, 624
So. 2d 422 (La. 1993) (finding attorney in contempt for refusing
to accept armed robbery case without compensation, his fifth
felony appointment in four months). In some judicial circuits, it
is a requirement that attorneys newly admitted to practice take
indigent appointments during their first years in the bar. Jeanne
Cummings, In Some Courts, It's “No Contest” for Lawyers Given
Indigent Cases, ATLANTA CONST., Apr. 6, 1990, at A1 (noting
requirement in Rome, Georgia, that all attorneys with 15 years
experience or less take criminal appointments)

“In all too many jurisdictions, the total compensation paid
to court-appointed counsel does not even meet their regular hourly
CRISIS 5 (1993) (prepared for the American Bar Association Section
of Criminal Justice Ad Hoc Committee on the Indigent Defense
Crisis). For example, in Virginia, the maximum fee allowable for
most felonies is $350. Id. at 6.
Page 20

simply cannot afford to continue to represent indigents while also
Some counties employ a “contract system” in which the county
contracts with an attorney in private practice to handle all of
the indigent cases for a specified amount. Often contracts are
awarded to the lawyer—or group of lawyers—who bids the lowest.84
The lawyer is still free to generate other income through private
practice. Any money spent on investigation and experts comes out
of the amount the lawyer receives. These programs are well known
for the exceptionally short shrift that the poor clients receive
and the lack of expenditures for investigative and expert
A third system is the employment of a group of lawyers or an
organization to handle all indigent criminal cases while not
engaging in any outside practice. These lawyers are usually called
“public defenders,” although in some jurisdictions they lack the
investigative and support staff that is considered part of a
genuine public defender program. Some of these offices employ
remarkably dedicated attorneys, whose jobs are nonetheless made
almost impossible by overwhelming caseloads and low funding.
For example, the Fulton County Public Defender program, which
serves the courts in Atlanta, has achieved nationwide notoriety
for its high caseloads—an average of 530 felony cases per attorney
commitment, and special hearings—and grossly inadequate funding.86
A public defender in Atlanta may be assigned as many as forty-five
new cases at one arraignment. At that time, upon first meeting
these clients—chained together—for a nonprivate, nonconfidential
“interview” in a holding area near the courtroom, she may plead
many of them guilty and have them sentenced on the spot. As one

Richard Klein, The Emperor Gideon Has No Clothes: The Empty
Promise of the Constitutional Right to Effective Assistance of
Counsel, 13 HASTINGS CONST. L.Q. 625, 679 (1986).

Id. at 680. A contract arrangement in one Georgia county
required that the attorney pay any investigative and expert expenses out of the $4265 he was to be paid that year for representing all of the county's indigent defendants. Not surprisingly,
often not one penny is spent on either investigative or expert
assistance in an entire year in some Georgia counties.

System of Defending Poor, N.Y. TIMES, Nov. 30, 1990, at B5; Monroe
Freedman, Third World Justice, First World Shame, FULTON COUNTY DAILY
collaboration” by judges in the “debasement of justice”); see also
Sandra McIntosh & Jeanne Cummings, Crisis in the Courts: Inmates
Wait Months To See a Lawyer, ATLANTA J.-CONST., Jan. 6, 1991, at A1.


Page 21

public defender described disposing of seventeen indigent defendants: “I met `em, pled `em and closed `em—all in the same day.”87
This system of criminal procedure is known as “slaughterhouse justice.” When one lawyer in the office, after closing 476 cases in
ten months and still carrying a caseload of 122, asserted her
ethical obligation to limit her caseload, she was berated by the
trial judge, who refused her request; she was eventually demoted
to juvenile court by the director of her office.88
A public defender in New Orleans represented 418 defendants
during the first seven months of 1991.89 During this time, he
entered 130 guilty pleas at arraignment and had at least one
serious case set for trial on every single trial date during the
period.90 In “routine cases,” he received no investigative support
because the three investigators in the public defender office were
responsible for more than 7000 cases per year.91 No funds were
available for expert witnesses. The Louisiana Supreme Court found
that, because of the excessive caseloads and insufficient
resources of the public defender office, the clients served by
this system are “not provided with the effective assistance of
counsel the [C]onstitution requires.”92
The structure of indigent defense not only varies among
states, it varies within many states from county to county. Some
localities employ a combination of these programs. All of these
approaches have several things in common. They evince the gross
underfunding that pervades indigent defense. They are unable to
attract and keep experienced and qualified attorneys because of
lack of compensation and overwhelming workloads.93 Just when

Trisha Renaud & Ann Woolner, Meet Em and Plead Em:
Slaughterhouse Justice in Fulton's Decaying Indigent Defense
System, FULTON COUNTY DAILY REP., Oct. 8, 1990, at 1.

Appelbome, supra note 85, at B5; Trisha Renaud & Ann
Woolner, Borsuk Grilled in Fryer Firestorm, FULTON COUNTY DAILY REP.,
Oct. 12, 1990, at 1; Richard Shumate, “I Will Not Accept Any More
Cases,” BARRISTER MAG., Winter 1991-92, at 11.

State v. Peart, 621 So. 2d 780, 784 (La. 1993).


Id. A serious case was defined as “one involving an offense
necessarily punishable by a jail term which may not be suspended.”
Id. at 784 n.3.



Id. at 790.


“The caseload crisis can devastate the morale of often
idealistic and dedicated attorneys.” Klein, supra note 80, at 39394. In some offices, caseloads make it impossible for even the
most competent and well-intentioned lawyers to provide their
clients with adequate representation. KLEIN & SPANGENBERG, supra note
Page 22

lawyers reach the point when they have handled enough cases to
begin avoiding basic mistakes, they leave criminal practice and
are replaced by other young, inexperienced lawyers who are even
less able to deal with the overwhelming caseloads. Generally, no
standards are employed for assignment of cases to counsel or for
the performance of counsel. And virtually no resources are
provided for investigative and expert assistance or defense counsel training.
The situation has further deteriorated in the last few years.
This is largely due to the increased complexity of cases and the
increase in the number of cases resulting from expanded resources
for police and prosecution and the lack of a similar increase, and
perhaps even a decline, in funding for defense programs.94 The
quality and funding for defense programs often varies greatly from
one county or judicial district to another in the same state.
Texas, which has one of the largest death row populations and has
carried out the most executions since the resumption of capital
punishment in 1976,95 is one of eight states in which indigent
defense is handled at the county level with no state funding.96
Funding for indigent defense varies significantly from county to
county.97 In Louisiana, the indigent defense system is funded by
82, at 6, 7, 9.

Klein, supra note 80, at 393, 398, 403-04, 407. For example,
Kentucky police and prosecutors received $4.6 million from civil
seizure and forfeitures in drug cases and $6 million from drug
grants under the Federal Comprehensive Crime Control Act in fiscal
year 1990, resulting in an increase of 114% in drug arrests, but
the state's public defender program received no money from either
Edward C. Monahan, Who Is Trying To Kill the Sixth
Amendment? ABA CRIM. JUSTICE, (Summer 1991), at 24, 27-28.
this money is added to state funding, Kentucky's police and
prosecutors received $156 million compared to the public defenders
receiving $11.4 million. Id. at 28.
Thus, Kentucky police and
prosecutors receive $14 for every $1 provided for public defense.

Texas had 365 people under death sentence and
out 69 executions by October 1993. NAACP LEGAL DEFENSE
FUND, supra note 79, at 9, 39. Since 1976, Texas has
more than twice as many executions as any other state.

had carried
carried out


THE SPANGENBERG GROUP, supra note 60, at 151.


Id. The same variations are also found in other states. A
report by a task force on indigent defense appointed by the
Governor of Kentucky found that funding per public defender case
in one Kentucky county was $44.22, while in another county the
funding was $296.44. The Governor's Task Force on the Delivery and
Recommendations, reprinted in ADVOCATE, Dec. 1993, at 8 (published
by Ky. Dep't of Public Advocacy, Frankfort, Ky.) [hereinafter
Page 23

assessments from traffic tickets. As a result, there have been
“wide variations in levels of funding,” adding to a “general
pattern . . . of chronic underfunding of indigent defense programs
in most areas of the state.”98 Alabama finances its indigent
defense system through a tax on all civil and criminal filings in
the court system.99
The deficiencies in representation resulting from such
haphazard and underfunded approaches have been acknowledged. The
vice president of the Georgia Trial Lawyers Association once
described the simple test used in that state to determine whether
a defendant receives adequate counsel as “the mirror test.” “You
put a mirror under the court-appointed lawyer's nose, and if the
mirror clouds up, that's adequate counsel.”100 It is not surprising
that such a dysfunctional system is incapable of providing legal
representation in capital cases. Unlike the offices of the
district attorneys and attorneys general, there is no structure in
many states for training and supervising young lawyers in their
initial years of practice to develop a cadre of attorneys who
specialize in the defense of complex cases. There are no job
opportunities in indigent defense for the young law graduates who
want to become criminal lawyers. And, because of the financial
incentives, most of those who have or develop good trial skills
quickly move on to personal injury work or, if they remain in
criminal law, the more lucrative defense of drug, pornography, and
white collar cases.

C. Compensation of Attorneys: The Wages of Death
The United States Court of Appeals for the Fifth Circuit,
constitutional right to adequate counsel in a capital case in
which [his] actual innocence was a close question,” observed that,
“The state [Texas] paid defense counsel $11.84 per hour.
Unfortunately, the justice system got only what it paid for.”101
What is unusual about the case is not the amount paid to counsel,
but the court's acknowledgement of its impact on the quality of
services rendered.
Kentucky Task Force Report].

State v. Peart, 621 So. 2d 780, 789 (La. 1993). A study of
the system found that there is a “desperate need to double the
budget for indigent defense in Louisiana in the next two years.”
LOUISIANA 50 (1992)).

ALA. CODE § 12-19-250 et seq (1975).


Hal Strauss, Indigent Legal Defense
ATLANTA J.-CONST., July 7, 1985, at 12A.

Page 24



Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).

As we have seen, in many jurisdictions poor people facing the
death penalty are not assigned specialists who work for indigent
practitioners. In some jurisdictions, the hourly rates in capital
cases may be below the minimum wage or less than the lawyer's
overhead expenses.102 Many jurisdictions limit the maximum fee for
a case. At such rates it is usually impossible to obtain a good
lawyer willing to spend the necessary time.
Alabama limits compensation for out-of-court preparation to
$20 per hour, up to a limit of $1000.103 In one rare Alabama case
where two lawyers devoted 246.86 and 187.90 hours respectively to
out-of-court preparation, they were still paid $1000 each, or
$4.05 and $5.32 per hour.104
In some rural areas in Texas, lawyers receive no more than
$800 to handle a capital case.105 Generally, the hourly rate is $50
or less.106 Attorneys appointed to defend capital cases in
Philadelphia are paid an average of $6399 per case.107 In the few
cases where a second attorney has been appointed, it is often at a
flat rate of $500.108 A study in Virginia found that, after taking
into account an attorney's overhead expenses, the effective hourly
rate paid to counsel representing an indigent accused in a capital
case was $13.109 In Kentucky, the limit for a capital case is


For the rates and maximums for each state, see Anthony
Paduano & Clive A.S. Smith, The Unconscionability of Sub-Minimum
Wages Paid Appointed Counsel in Capital Cases, 43 RUTGERS L. REV.
281, 349-53 (1991).

ALA. CODE § 15-12-21 (a) (Supp. 1992).


Smith v. State, 581 So. 2d 497, 526 (Ala. Crim. App. 1990).
An opinion of the Alabama Attorney General has since concluded
that the sentencing phase of a capital case is to be considered a
separate case, allowing a maximum payment of $2000 for out-ofcourt time at a rate of $20 per hour. Op. Ala. Att'y Gen. No. 9100206 (Mar. 21, 1991).

Marianne Lavelle, Strong Law Thwarts Lone Star Counsel,
NAT'L L.J., June 11, 1990, at 34.

THE SPANGENBERG GROUP, supra note 60, at 157.


Tulsky, What Price Justice?, supra note 48, at A18.


Tulsky, Big-Time Trials, supra note 48, at A1, A8. The $500
fee was to encourage lawyers to get experience in capital cases.
However, only a handful of lawyers took on cases because of the
low compensation. Id.

Page 25

Klein, supra note 80, at 366.

Sometimes even these modest fees are denied to appointed
counsel. A capital case in Georgia was resolved with a guilty plea
only after the defense attorneys, a sole practitioner and this
author, agreed not to seek attorneys fees as part of the bargain
in which the state withdrew its request for the death penalty.111
In cases involving financial as opposed to moral bankruptcy,
Atlanta law firms charge around $125 per hour for their
associates, $200 per hour for partners, and $50 to $80 per hour
for paralegals.112 In civil rights and other civil litigation,
courts routinely order attorneys fees much higher than those paid
to appointed lawyers in capital cases.113 Paralegals and law clerks
in civil rights cases may be compensated at rates equal to or
better than what experienced attorneys are paid in capital

Kentucky Task Force Report, supra note 96, at 11.


Mark Curriden, Fees for Pleas Called Improper, A.B.A. J.,
May 1993, at 28; Hard Bargain, NAT'L L.J., Nov. 19, 1990, at 12
(editorial); Marianne Lavelle, Cop Plea, But Forfeit Your Fee,
NAT'L L.J., Nov. 19, 1990, at 29. Counsel had been forced to
appeal to the Georgia Supreme Court to be appointed because the
local trial judge had refused to appoint the lawyers who won the
defendant a new trial in federal habeas corpus. See Amadeo v.
State, 384 S.E.2d 181 (Ga. 1989).

Tim O'Reiley, Billing Rates Crept Upward in 1992, FULTON
COUNTY DAILY REP., Feb. 15, 1993, at 1B; Tim O'Reiley, Lawyers
Raised Prices Despite Slump, FULTON COUNTY DAILY REP., Jan. 25, 1994,
at 1. The rates charged are supposed to be the attorneys' usual
and customary prices.

See, e.g., Brooks v. Georgia State Bd. of Elections, 997
F.2d 857 (11th Cir. 1993) (remanding voting rights case for
assessment of fees between $125 and $175 per hour); Davis v.
Locke, 936 F.2d 1208 (11th Cir. 1991) (affirming attorneys fees of
$150 per hour in civil rights action against prison guards);
Associated Builders & Contractors v. Orleans Parish Sch. Bd., 919
F.2d 374 (5th Cir. 1990) (affirming award of $165-$175 per hour
for partners and $100 per hour for associates in suit alleging
equal protection violation in connection with school system setaside construction program); Von Clark v. Butler, 916 F.2d 255
(5th Cir. 1990) (affirming attorneys fees of $100 per hour for
preparation time and $200 per hour for in-court time in civil
rights claim of excessive use of force in arrest); Cobb v. Miller,
818 F.2d 1227 (5th Cir. 1987) (mandating $90 per hour in civil
rights litigation for damages resulting during plaintiff's arrest
and conviction); Knight v. Alabama, 824 F. Supp. 1022 (N.D. Ala.
1993) (awarding attorneys fees ranging from $275 per hour for lead
counsel to $100-$200 per hour for other attorneys in school
discrimination action).
Page 26

cases.114 A new attorney at the Southern Center for Human Rights,
straight out of law school, was awarded $65 per hour by a federal
court in 1990 for work on a prison conditions case.115 More
experienced lawyers on that case were paid at rates of $90, $100,
and $150 per hour. Attorneys appointed to death penalty cases in
state courts can never expect compensation at such rates.
A justice of the Georgia Supreme Court recently criticized
that court's limitation of attorneys fees in an employment discrimination case.116 Limiting the attorney to $50 per hour117 instead
of providing the opportunity to recover reasonable attorneys fees
would, the justice argued, make it unduly difficult to find
lawyers for those who were victims of discrimination and
“effectively den[y] many Georgians the key to the courthouse
door.”118 At lower rates it is even more difficult to find
attorneys for capital cases.
Thus, it is unlikely that lawyers will seek appointments in
capital cases when they can earn more handling other types of
cases. It is undeniable that “[i]n our pecuniary culture the
caliber of personal services rendered usually has a corresponding
relationship to the compensation provided.”119 Lawyers who have
been appointed to defend the poor in capital trials often vow
never to handle another. It is financially disastrous, emotionally
draining,120 and, for the small-town sole practitioner, it may be

See, e.g., Martin v. Mabus, 734 F. Supp. 1216, 1230 (S.D.
Miss. 1990) (awarding $35 per hour for paralegal and student law
clerk work in voting rights action).

Plyler v. Evatt, 902 F.2d 273, 276 (4th Cir. 1990).


The court held that where a successful plaintiff was not
contractually obligated to pay any fees to her lawyer because the
lawyer had been appointed by the Office of Fair Employment
Practices, the Georgia Fair Employment Practices Act did not allow
an award of “reasonable attorneys fees.” Finney v. Department of
Corrections, 434 S.E.2d 45 (Ga. 1993).

The attorney had contracted with the Commission on Equal
Opportunity to provide representation for $50 per hour, a fee
which had already been paid. Katie Wood, Court Limits Fees in Bias
Cases: Decision Restricting Attorneys Fees Divides High Court,
FULTON COUNTY DAILY REP., July 6, 1993, at 11.

Finney v. Department of
(Sears-Collins, J., dissenting).







Makemson v. Martin County, 491 So. 2d 1109, 1114-15 (Fla.
1986), cert. denied, 479 U.S. 1043 (1987) (quoting MacKenzie v.
Hillsborough County, 288 So. 2d 200, 202 (Fla. 1973) (Ervin, J.,

Page 27

See, e.g., Michael A. Kroll, Death Watch, CAL. LAW., Dec.

very damaging to relations with paying clients. Even at $200 an
hour, it would be difficult to attract lawyers to handle these
Not surprisingly, a recent study in Texas found that “more
experienced private criminal attorneys are refusing to accept
court appointments in capital cases because of the time involved,
the substantial infringement on their private practices, the lack
of compensation for counsel fees and expert expenses and the
enormous pressure that they feel in handling these cases.”121 “In
many counties, the most qualified attorneys often ask not to be
considered for court appointments in capital cases due to the fact
that the rate of compensation would not allow them to cover the
expense of running a law practice.”122 The same unwillingness to
take cases because of the low fees has been observed in other
states.123 Consequently, although capital cases require special
skills,124 the level of compensation is often not enough even to
attract those who regularly practice in the indigent defense

D. The Role of Judges: Appointment and
Oversight of Mediocrity and Incompetence
Even if, despite the lack of indigent defense programs and
adequate compensation, capable lawyers were willing to move to
jurisdictions with many capital cases, forego more lucrative
business, and take appointments to capital cases, there is still
no assurance that those lawyers would be appointed to the cases.
It is no secret that elected state court judges do not appoint the
best and brightest of the legal profession to defend capital
cases.125 In part, this is because many judges do not want to
1987, at 24-27 (describing unwillingness of some lawyers in
California to take capital cases because of emotional toll and

THE SPANGENBERG GROUP, supra note 60, at 152.


Id. at 157.


See, e.g., Friedman & Stevenson, supra note 48, at 30;
Paduano & Smith, supra note 101, at 333.

“Capital cases require perceptions, attitudes, preparation,
training, and skills that ordinary criminal defense attorneys may
lack.” Gary Goodpaster, The Trial for Life: Effective Assistance
of Counsel in Death Penalty Cases, 58 N.Y.U. L. REV. 299, 303-04
(1983); see also Welsh S. White, Effective Assistance of Counsel
in Capital Cases: The Evolving Standard of Care, 1993 U. ILL. L.
REV. 323 (describing in detail the “evolving standard of care” for
the defense of capital cases).

Trial and appellate judges are elected or face retention
elections after appointment in most states that have the death
Page 28

impose on those members of the profession they believe to have
more important, financially lucrative things to do. But even when
choosing from among those who seek criminal appointments, judges
often appoint less capable lawyers to defend the most important
Judges have appointed to capital cases lawyers who have never
tried a case before.126 A study of homicide cases in Philadelphia
found that the quality of lawyers appointed to capital cases in
Philadelphia is so bad that “even officials in charge of the
system say they wouldn't want to be represented in Traffic Court
by some of the people appointed to defend poor people accused of
murder.”127 The study found that many of the attorneys were
appointed by judges based on political connections, not legal
ability. “Philadelphia's poor defendants often find themselves
being represented by ward leaders, ward committeemen, failed
politicians, the sons of judges and party leaders, and
contributors to the judge's election campaigns.”128
An Alabama judge refused to relieve counsel even when they
filed a motion to be relieved of the appointment because they had
inadequate experience in defending criminal cases and considered
themselves incompetent to defend a capital case.129 Georgia trial
judges have repeatedly refused to appoint or compensate the
experienced attorneys who, doing pro bono representation in
postconviction stages of review, had successfully won new trials
for clients who had been sentenced to death.130 In several of those
cases, the Georgia Supreme Court ordered continued representation
at the new trials by the lawyers who were familiar with the case
and the client. Despite those precedents, a Georgia judge refused
to appoint an expert capital litigator from the NAACP Legal
Defense and Educational Fund to continue representation of an
indigent defendant, even though the Legal Defense Fund lawyer had
won a new trial for the client by showing in federal habeas corpus
penalty. Some of the difficulties that elected judges have in
protecting the rights of the accused are described in Thomas M.
Ross, Rights at the Ballot Box: The Effect of Judicial Elections
on Judges' Ability To Protect Criminal Defendants' Rights, 7 LAW &
INEQ. J. 107 (1988).

See supra note 56.


Tulsky, Big-Time Trials, supra note 48, at A8.




Parker v. State, 587 So. 2d 1071, 1100-03 (Ala. Crim. App.


Davis v. State, 404 S.E.2d 800 (Ga. 1991); Birt v.
Montgomery, 387 S.E.2d 879 (Ga. 1990); Amadeo v. State, 384 S.E.2d
181 (Ga. 1989).
Page 29

proceedings that he had received ineffective assistance from the
lawyer appointed by the judge at the initial capital trial.131 And
the lower court judges who have been reversed for failing to allow
continuity in representation are still appointing lawyers when new
cases come through the system. Those new defendants have no one to
assist them in securing competent representation.
A newly-admitted member of the Georgia bar was surprised to
be appointed to handle the appeal of a capital case on her fifth
day of practice in Columbus, Georgia. Two days earlier she had met
the judge who appointed her when she accompanied her boss to a
divorce proceeding. Only after she asked for help was a second
attorney brought onto the case. Another lawyer in that same
circuit was appointed to a capital case, but after submitting his
first billing statement to the judge for approval was told by the
judge that he was spending too much time on the case. He was
summarily replaced by another lawyer and the defendant was
ultimately sentenced to death. For a number of years, judges in
that circuit appointed a lawyer to capital cases who did not challenge the underrepresentation of black citizens in the jury pools
for fear of incurring hostility from the community and alienating
potential jurors.132 As a result, a number of African-Americans
were tried by all-white juries in capital cases even though onethird of the population of the circuit is African-American.
The many other examples of exceptionally poor legal representation documented by the American Bar Association (ABA), the
National Law Journal, and others indicate that judges either are
intentionally appointing lawyers who are not equal to the task or
are completely inept at securing competent counsel in capital
cases. The reality is that popularly elected judges, confronted by
a local community that is outraged over the murder of a prominent
citizen or angered by the facts of a crime, have little incentive
to protect the constitutional rights of the one accused in such a
killing. Many state judges are former prosecutors who won their
seats on the bench by exploiting high-publicity death penalty
cases. Some of those judges have not yet given up the
prosecutorial attitude.
United States Congressman William J. Hughes, a former New
Jersey prosecutor and leader on crime issues in the Congress,
observed: “With some of the horror stories we've heard—lawyers who
didn't call witnesses, who waived final argument—it is incredible
that the courts allowed these cases to move forward.”133 What is
even more incredible is that in most of these instances the judges
appointed the lawyers to the case.

Roberts v. State, No. S93A1857, 1994 Ga. LEXIS 200 (Ga.
Feb. 21, 1994).

See Gates v. Zant, 863 F.2d 1492, 1497-1500 (11th Cir.),
cert. denied, 493 U.S. 945 (1989).

Marcia Coyle et. al, Washington Brief: High
Congressional Habeas, NAT. L.J.. July 9, 1990, at 5.
Page 30



E. The Minimal Standard of Legal
Representation Tolerated in Capital Cases
This sad state of affairs is tolerated in our nation's courts
in part because the United States Supreme Court has said that the
Constitution requires no more. Instead of actually requiring
effective representation to fulfill the Sixth Amendment's
guarantee of counsel, the Court has brought the standard down to
the level of ineffective practice. Stating that “the purpose of
the effective assistance guarantee of the Sixth Amendment is not
to improve the quality of legal representation,” the Court in
Strickland v. Washington134 adopted a standard
that is “highly
deferential” to the performance of counsel.135 To prevail on a
claim of ineffective assistance of counsel, a defendant must
overcome “a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance,” show that
the attorney's representation “fell below an objective standard of
reasonableness,”136 and establish “prejudice,” which is defined as
a reasonable probability that counsel's errors affected the
As Judge Alvin Rubin of the Fifth Circuit concluded:
The Constitution, as interpreted by the courts,
does not require that the accused, even in a capital
case, be represented by able or effective counsel
. . . . Consequently, accused persons who are represented by “not-legally-ineffective” lawyers may be
condemned to die when the same accused, if represented
by effective counsel, would receive at least the clemency of a life sentence.138
Much less than mediocre assistance passes muster under
Strickland standard. Errors in judgment and other mistakes
readily be characterized as “strategy” or “tactics” and thus
beyond review.139 Indeed, courts employ a lesser standard

466 U.S. 668, 689 (1984).




Id. at 688-89.


Id. at 694.


Riles v. McCotter,
(Rubin, J., concurring).









Klein, supra note 83, at 634. For an example of the
extraordinary lengths to which some courts will go to avoid
finding a lawyer ineffective, see Rogers v. Zant, 13 F.3d 384
(11th Cir. 1994), where the court, in reversing a finding by the
district court of ineffective assistance in a capital case,
Page 31

judging the competence of lawyers in a capital case than the
The defense lawyer in one Texas case failed to introduce any
evidence about his client at the penalty phase of the trial. The
attorney's entire closing argument regarding sentencing was: “You
are an extremely intelligent jury. You've got that man's life in
your hands. You can take it or not. That's all I have to say.”141 A
United States district court granted habeas corpus relief because
of the lawyer's failure to present and argue evidence in
mitigation, but the Fifth Circuit, characterizing counsel's
nonargument as a “dramatic ploy,” found that the attorney's
performance satisfied Strickland.142 The lawyer was later suspended
for other reasons.143 The defendant was executed.
Numerous other cases in which executions have been carried
out demonstrate that the minimal standard for attorney competence
employed in death penalty cases provides little protection for
most poor persons accused of capital crimes. The case of John
Eldon Smith, the first person executed in Georgia since the death
penalty was restored,144 is not exceptional. Smith's sentence was
upheld and he was killed despite a constitutional violation
because of his lawyer's ignorance of the law, while his
codefendant won a new trial due to the same constitutional
violation and later received a life sentence. The second person
executed in Georgia after Smith was a mentally retarded offender,
convicted despite a jury instruction that unconstitutionally
shifted the burden of proof on intent; he was denied relief
because his attorney did not preserve the issue for review.145 The
stated: “Even if many reasonable lawyers would not have done as
defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable
lawyer, in the circumstances, would have done so.” Id. at 386
(emphasis added). Rejecting other decisions by other panels of the
same court holding that strategic decisions must be based on
investigation, the panel in Rogers concluded that “`strategy' can
include a decision not to investigate” and that “once we conclude
that declining to investigate further was a reasonable act, we do
not look to see what a further investigation would have produced.”
Id. at 386-87, 388.

Page 32


Klein, supra note 83, at 640-41.


Romero v. Lynaugh, 884 F.2d 871, 875 (5th Cir. 1989).


Id. at 877.


Suspensions, 56 TEX. B.J., Jan. 1993, at 73.


See supra notes 34-39 and accompanying text.


Stanley v. Kemp, 737 F.2d 921 (11th Cir. 1984), application

more culpable codefendant was granted a new trial on the very same
issue.146 Again, as with Smith and Machetti, switching the lawyers
would have reversed the outcomes of the case.
John Young was sentenced to death in the same county as
Smith. Young was represented at his capital trial by an attorney
who was dependent on amphetamines and other drugs which affected
his ability to concentrate. At the same time, the lawyer was
physically exhausted, suffering severe emotional strain, and
distracted from his law practice because of marital problems,
child custody arrangements, difficulties in a relationship with a
lover, and the pressures of a family business.147 As a result, the
lawyer made little preparation for Young's trial, where his
performance was inept. Young was sentenced to death. A few weeks
later, Young met his attorney at the prison yard in the county
jail. The lawyer had been sent there after pleading guilty to
state and federal drug charges.148 Georgia executed John Young on
March 20, 1985.
James Messer was “represented” at trial by an attorney who,
at the guilt phase, gave no opening statement, presented no
defense case, conducted cursory cross-examination, made no objections, and then emphasized the horror of the crime in some brief
closing remarks that could not be fairly described as a “closing
argument.”149 Even though severe mental impairment was important to
issues of mitigation at both the guilt and penalty phases, the
lawyer was unable to present any evidence of it because he failed
to make an adequate showing to the judge that he needed a mental
health expert.150 He also failed to introduce Messer's steady employment record, military record, church attendance, and cooperation with police. In closing, the lawyer repeatedly hinted that
death was the most appropriate punishment for his own client.151
This too was good enough for a capital case in Georgia. Messer was
executed July 28, 1988.

for stay denied, 468 U.S. 1220 (1984).

Thomas v. Kemp, 800 F.2d 1024 (11th Cir. 1986).


Affidavit of Charles Marchman, Jr. at 1-5, Young v. Kemp,
No. 85-98-2-MAC (M.D. Ga. 1985).

Id. at 7.


Messer v. Kemp, 474 U.S. 1008, 1090 (1986) (Marshall, J.,
dissenting from denial of certiorari).

Messer v. Kemp, 831 F.2d 946, 951 (11th Cir. 1987) (en
banc), cert. denied, 485 U.S. 1029 (1988).

Messer v. Kemp, 760 F.2d 1080, 1096 n.2 (11th Cir. 1985)
(Johnson, J., dissenting), cert. denied, 474 U.S. 1088, 1090
(1986) (Marshall, J., dissenting from denial of certiorari).
Page 33

In light of Messer's case, one cannot help but wonder what
progress has been made since the Supreme Court held that there is
a right to counsel in capital cases in Powell v. Alabama. The nine
black youths tried in Scottsboro, Alabama, in 1931 for the rapes
of two white girls were represented by a lawyer described as “an
able member of the local bar of long and successful experience in
the trial of criminal as well as civil cases” who conducted
“rigorous and rigid cross-examination” of the state's witnesses.152
That is more than James Messer received at his capital trial.
Another case in which the attorney did nothing was that of
Billy Mitchell, executed by Georgia on September 1, 1987.
Following a guilty plea, Mitchell was sentenced to death at a
sentencing hearing at which defense counsel called no witnesses,
presented no mitigating evidence, and made no inquiries into his
client's academic, medical, or psychological history.153 A great
deal of information of this kind was available and, if presented,
could well have reduced the sentence imposed on Mitchell. In
postconviction proceedings, new counsel submitted 170 pages of
affidavits summarizing the testimony of individuals who could have
appeared on Mitchell's behalf. Among them were family members, a
city council member, a former prosecutor, a professional football
player, a bank vice president, and several teachers, coaches, and
The same ineptitude is frequently tolerated on appeal. The
brief on direct appeal to the Alabama Supreme Court in the case of
Larry Gene Heath, executed by Alabama on March 20, 1992, consisted
of only one page of argument and cited only one case, which it
distinguished.155 Counsel, who had filed a six-page brief on the

Powell v. Alabama, 287 U.S. 45, 75 (1932) (Butler, J.,
dissenting) (quoting decision of Alabama Supreme Court).

Mitchell v. Kemp, 483 U.S. 1026, 1026-27 (1987) (Marshall,
J., dissenting from denial of certiorari.).



What follows is the brief in its entirety. The only parts
of the brief not set out below are the cover page and certificate
of service:
In the opinion of the Court of Criminal Appeals
rendered on July 5, 1983, the Court failed to address
the issue as to whether or not the Appellant was tried
and convicted of the same offense, which is precisely
the same in law and fact as the offense of which he was
convicted in the State of Georgia.
As the Court pointed out on Page 3 of it's [sic]
opinion, there were no cited cases to any Federal case
Page 34

law involving jeopardy in multiple State prosecutions
and because there are no Federal cases cited, the Court
apparently ignored the law relative to multiple
prosecutions for an offense, which are precisely the
same in law and fact.
Apparently the Court relied on the case of Hare v
State, 387 So. 2 d [sic] 299, 300 (Ala. Crim. App.
1980) in reaching it's [sic] decision in this case. The
Hare case can be distinguished simply by looking at the
facts in the Hare case, wherein the Court in Tennessee
was dealing with the offense of possession of drugs in
the State of Alabama, which are not precisely the same
in law and fact.
The Appellant plead guilty to the offense of
murder, which was a lesser included offense of the
charge of murder caused and directed by the Appellant
under the laws of the State of Georgia and received a
life sentence. After the Appellant was sentenced in the
State of Georgia to life imprisonment, he was returned
to the State of Alabama and was prosecuted and
convicted of the offense of murder during kidnapping,
1st degree in the State of Alabama for the murder of
his wife, Rebecca Heath.
Apparently this case is one of first impression in
the State of Alabama, and this Court has not ruled on a
similar case involving the offense of murder where only
one victim is involved.
Appellant contends that his constitutional rights
guaranteed under the 5th Amendment of the United States
Constitution and his rights guaranteed by Article I
Section 9 of the Alabama Constitution prohibiting
Double Jeopardy and Double Punishment have been violated. Further, Appellant contends that he relied upon his
guaranteed Constitutional rights as set forth above in
pleading guilty to a lesser included offense of murder
of his wife, in the state of Georgia, and that the
prosecution in the State of Alabama on the offense of
murder during the course of kid napping [sic] of his
wife, should be barred.
Therefore, after considering the facts, law and
argument of Appellant, a Writ of Certiorari should be
issued from this Court to the Court of Criminal Appeals
correcting the errors complained of and reversing the
judgment of the Court of Criminal Appeals and rendering
such judgments as said Court have [sic] rendered in
addition to such other relief as Petitioner may be
Respectfully submitted,
Page 35

same issue in the Alabama Court of Criminal Appeals,156 did not
appear for oral argument in the case. Although the United States
Court of Appeals later found counsel's performance deficient for
failing to raise issues regarding denial of a change of venue,
denial of sixty-seven challenges for cause of jurors who knew
about the defendant's conviction in a neighboring state arising
out of the same facts, and use of the defendant's assertion of his
Fifth Amendment rights against him, it found no prejudice.157
While such incompetence as has been described here passes
muster as “effective assistance of counsel” under the Supreme
Court's view of the Sixth Amendment, counsel's performance often
fails to satisfy the increasingly strict procedural doctrines
developed by the Supreme Court since 1977. Failure of counsel to
recognize and preserve an issue, due to ignorance, neglect, or
failure to discover and rely upon proper grounds or facts, even in
the heat of trial, will bar federal review of that issue.158 A
lawyer whose total knowledge of criminal law is Miranda and Dred
Scott may be “not legally-ineffective” counsel under Strickland,159
Appellant's Brief and Argument in Support of Petition for
Writ of Certiorari, at 1-2, Heath v. Alabama, 455 So. 2d. 905
(Ala. 1984). Alabama requires that the brief and petition for
certiorari be submitted at the same time. ALA. R. CRIM. P. 32.2
(1990). Thus, the Alabama Supreme Court decided Heath's case on
the basis of this brief alone.

Heath v. Jones, 941 F.2d 1126, 1131 (11th Cir. 1991), cert.
denied, 112 S. Ct. 981 (1992).

Id. at 1131-37. However, Judge J.L. Edmondson, in
concurring, disagreed even with the court's comment regarding
counsel's performance.
He stated, “I cannot agree that the
quality of counsel's performance can be judged much by the length
of brief or the number of issues raised. . . . Effective lawyering
involves the ability to discern strong arguments from weak ones
and the courage to eliminate the unnecessary so that the necessary
may be seen most clearly.” Id. at 1141 (Edmondson, J.,
concurring). The brief in Heath, however, and counsel's failure to
appear for oral argument hardly constitute sterling examples of
such ability or courage.

See Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v.
Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S.
72, 88-91 (1977); see also Richard J. Bonnie, Preserving Justice
in Capital Cases While Streamlining the Process of Collateral
Review, 23 U. TOL. L. REV. 99, 109-13 (1991); Timothy J. Foley,
The New Arbitrariness: Procedural Default of Federal Habeas Claims
in Capital Cases, 23 LOY. L.A. L. REV. 193 (1989).

The lawyer who testified that those were the only two
“criminal” cases he knew has twice been found to satisfy the
Strickland standard. Birt v. Montgomery, 725 F.2d 587, 596-601
Page 36

but such a lawyer will of course not recognize or preserve many
constitutional issues. The result has been what Justice Thurgood
Marshall described as an “increasingly pernicious visegrip”160 for
the indigent accused: courts refuse to address constitutional
violations because they were not preserved by counsel, but
counsel's failure to recognize and raise those issues is not
considered deficient legal assistance.161
Together, the lax standard of Strickland and the strict
procedural default doctrines reward the provision of deficient
representation. By assigning the indigent accused inadequate
counsel, the state increases the likelihood of obtaining a
conviction and death sentence at trial and reduces the scope of
review. So long as counsel's performance passes muster under
Strickland, those cases in which the accused received the poorest
legal representation will receive the least scrutiny on appeal and
in postconviction review because of failure of the lawyer to
preserve issues.
In applying Strickland, courts indulge in presumptions and
assumptions that have no relation to the reality of legal
representation for the poor, particularly in capital cases. One
(11th Cir. 1984) (en banc), cert. denied, 469 U.S. 874 (1984);
Williams v. State, 368 S.E.2d 742, 747-50 (Ga. 1988). See supra
note 32.


Marshall, supra note 46, at 44 (footnotes omitted).

Justice Robert Benham of the Georgia Supreme Court was
“struck by the powerful irony” of the majority's refusal to consider an issue of “flagrantly improper” prosecutorial misconduct
in one case because it was not preserved by counsel, but holding
that counsel was not ineffective. Todd v. State, 410 S.E.2d 725,
735 n.1 (Ga. 1991) (Benham, J., dissenting). The majority disposed
of the ineffective assistance claim in four sentences. Id. at 731.
The Mississippi Supreme Court refused to consider two issues on
direct appeal because they were not properly preserved by trial
counsel in Hill v. State, 432 So. 2d 427, 438-40 (Miss. 1983),
over a dissent which argued, “We can think of no more arbitrary
factor than having nimbleness of counsel on points of procedure
determine whether Alvin Hill lives or dies.” Id. at 449
(Robertson, J., concurring in part and dissenting in part). The
same court later rejected in a single paragraph an assertion that
counsel was ineffective. In re Hill, 460 So. 2d 792 (Miss. 1984).
The dissent argued: “Where two clear cut reversible errors were
not available on direct appeal to a condemned defendant solely
because his lawyer goofed, that would seem to make a prima facie
case for ineffective assistance of counsel.” Id. at 811
(Robertson, J., concurring in part and dissenting in part). Other
examples are collected in Friedman & Stevenson, supra note 48, at
Page 37

automatically qualifies one to defend a capital case “lethal
fiction.”162 The reality is that most attorneys are not qualified
to represent criminal defendants and certainly not those accused
of capital crimes.163
There is no basis for the presumption of competence in
capital cases where the accused is represented by counsel who
lacks the training, experience, skill, knowledge, inclination,
time, and resources to provide adequate representation in a
capital case. The presumption should be just the opposite—where
one or more of these deficiencies exist, it is reasonable to
conclude that the lawyer is not capable of rendering effective
representation.164 Indeed, the presumption of competence was
adopted even though the Chief Justice of the Supreme Court, who
joined in the majority in Strickland, had written and lectured
about the lack of competence of trial attorneys.165
Another premise underlying Strickland is that “[t]he
government is not responsible for, and hence not able to prevent,
attorney errors.”166 However, the notion of government innocence is
simply not true in cases involving poor people accused of crimes.
The poor person does not choose an attorney; one is assigned by a
judge or some other government official. The government may well
be responsible for attorney errors when it appoints a lawyer who
lacks the experience and skill to handle the case, or when it
denies the lawyer the time and resources necessary to do the job.
In addition, as observed by Justice Blackmun:

Green, supra note 48, at 433, 454.


Id. at 476-89.


The Louisiana Supreme Court, relying upon its state
constitution and laws, has adopted such a presumption where there
is a likelihood of inadequate representation. Finding that the
“provision of indigent defense services” in one section of court
in Orleans Parish “is in many respects so lacking that defendants
who must depend on it are not likely to be receiving the
reasonably effective assistance of counsel,” the court adopted a
rebuttable presumption that indigents in that section were not
receiving constitutionally required assistance. State v. Peart,
621 So. 2d 780, 791 (La. 1993). The court ordered pretrial
hearings where there were questions of adequate representation and
instructed the trial court “not [to] permit the prosecution to go
forward until the defendant is provided with reasonably effective
assistance of counsel.” Id. at 792.

See, e.g., Warren E. Burger, Remarks on Trial Advocacy: A
Proposition, 7 WASHBURN L.J. 15 (1967); Warren E. Burger, The
Special Skills of Advocacy: Are Specialized Training and
Certification of Advocates Essential to Our System of Justice, 42
FORDHAM L. REV. 227 (1973).

Page 38

Strickland v. Washington, 466 U.S. 688, 693 (1984).

The county's control over the size of and funding
for the public defender's office, as well as over the
number of potential clients, effectively dictates the
influences substantially the amount of time the
attorney is able to devote to each case. The public
defender's discretion in handling individual cases—and
therefore his ability to provide effective assistance
experienced by privately retained attorneys.167
The assumption that deficient representation makes no
difference,168 which underlies a finding of lack of prejudice under
Strickland, is also flawed.169 In cases where constitutional
violations were not preserved and the defendant was executed while
an identically situated defendant received relief for the same
constitutional violation, it is apparent that the ineptitude of
the lawyer did make a difference in the outcome of the case. In
other more subtle but equally determinative ways, competent legal
assistance can make a difference in the outcome of legal
proceedings, which may not be detectable by reviewing courts.170
A lawyer may muddle through a case with little or no
preparation, but it is impossible to determine how the case might
have been handled differently if he had investigated and prepared.
Other difficulties may be even more difficult to detect. Rapport

Polk County v. Dodson, 454 U.S. 312, 332 (1981) (Blackmun,
J., dissenting).

“It is the belief—rarely articulated, but, I am afraid,
widely held—that most criminal defendants are guilty anyway. From
this assumption it is a short path to the conclusion that the
quality of representation is of small account.” David L. Bazelon,
The Defective Assistance of Counsel, 42 U. CIN. L. REV. 1, 26

“For a court to be required to engage in speculation about
how the trial might have gone if counsel had been effective is to
minimize the importance of the sixth amendment right to counsel
. . . .” Klein, supra, note 83, at 641; see also Ivan K. Fong,
Note, Ineffective Assistance of Counsel at Capital Sentencing, 39
STAN. L. REV. 461, 477-80 (1987).

For other shortcomings of the Strickland standard, see Gary
Goodpaster, The Adversary System, Advocacy and the Effective
Assistance of Counsel in Criminal Cases, 14 N.Y.U. REV. L. & SOC.
CHANGE, 59, 83-85 (1986); Green, supra note, at 500-05; Paduano &
Smith, supra note 101, at 326-31; Rodger Citron, Note, (Un)Luckey
v. Miller: The Case for a Structural Injunction To Improve
Indigent Defense Services, 101 YALE L.J. 481, 486-88 (1991).
Page 39

with the client and the family may lead to cooperation and the
disclosure of compelling mitigating evidence that might not be
found by a less skillful attorney.171 Good negotiating skills may
bring about a plea offer to resolve the case with a sentence less
than death, and a good relationship with the client may result in
acceptance of an offer that might otherwise be rejected.172 Nor are
reviewing courts able to determine after the fact the difference
made by other skills that are often missing in the defense of
criminal cases—such as conducting a good voir dire examination of
jurors, effective examination and cross-examination of witnesses,
and presenting well-reasoned and persuasive closing arguments.
The prejudice standard is particularly inappropriate for
application to deficient representation at the penalty phase of a
capital case. It is impossible for reviewing courts to assess the
difference that investigation into mitigating circumstances and
the effective presentation of mitigating evidence might make on a
jury's sentencing decision.
The Supreme Court has consistently reaffirmed that in a
capital case any aspect of the life and background of the accused
offered by the defense must be considered as “mitigating
circumstances” in determining punishment.173 Those who have tried
capital cases have found that the competent presentation of such
evidence often results in sentences less than death.174 But the
right to have any of the “diverse frailties of humankind”175 taken
into account is meaningless if the accused is not provided with
counsel capable of finding and effectively presenting mitigating
A court-appointed defense lawyer's only reference to his
client during the penalty phase of a Georgia capital case was:
“You have got a little ole nigger man over there that doesn't

See White, supra note 123, at 340-46.




Lockett v. Ohio, 438 U.S. 586, 604 (1978) (holding that
sentencer must consider “any aspect of a defendant's character or
record . . . that the defendant proffers as a basis for a sentence
less than death”); Penry v. Lynaugh, 492 U.S. 302 (1989) (mental
retardation must be considered in mitigation); Hitchcock v.
Dugger, 481 U.S. 393 (1987) (jury instructions may not limit the
jury's consideration of mitigating circumstances); Skipper v.
South Carolina, 476 U.S. 1 (1986) (good behavior in prison must be
considered as mitigating factor); Eddings v. Oklahoma, 455 U.S.
104 (1982) (troubled childhood must be considered as mitigating
factor); Bell v. Ohio, 438 U.S. 637 (1978) (same holding as

Page 40


White, supra note 123, at 325-29, 340-42.


Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

weigh over 135 pounds. He is poor and he is broke. He's got an
appointed lawyer. . . . He is ignorant. I will venture to say he
has an IQ of not over 80.”176 The defendant was sentenced to death.
Had that lawyer done any investigation into the life and
background of his client, he would have found that his client was
not simply “ignorant.” Instead, he was mentally retarded. For that
reason, he had been rejected from military service. And he had
been unable to function in school or at any job except the most
repetitive and menial ones. His actual IQ was far from 80; it was
68. He could not do such basic things as make change or drive an
automobile. After his death sentence was set aside because of
failure to grant a change of venue,177 an investigation was
conducted, these facts were documented, and the defendant received
a life sentence.178
In another case, an attorney, obviously under the influence
of alcohol, came to the Southern Center for Human Rights, in
Atlanta, after business hours on a Friday evening. He was
clutching part of a trial transcript and said that he needed help
preparing his brief to the Georgia Supreme Court for the direct
appeal of a mentally retarded man he had represented at trial who
had been sentenced to death. The brief was due the following Monday. Nothing had been written for the appeal. It was impossible
even to assemble the entire record by Monday. Fortunately, an
extension of time was obtained and eventually the case was
remanded to the trial court. New counsel subsequently negotiated a
life sentence.179
In these and other cases previously discussed in Section I,
once the facts were discovered and brought out, life sentences
were obtained for people previously sentenced to death. But these
were cases where by sheer luck the defendants later received
proceedings. Many of these cases were returned for retrials for
reasons having nothing to do with the poor legal representation at

Transcript of Opening and Closing Arguments at 39, State v.
Dungee, Record Excerpts at 102, (11th Cir.) (No. 85-8202), decided
sub nom. Isaacs v. Kemp, 778 F.2d 1482 (11th Cir. 1985), cert.
denied, 476 U.S. 1164 (1986).

Id. The court did not address the issue of ineffective
assistance of counsel, which had been rejected by the district

Dungee v. State, No. 444 (Super. Ct. Seminole County, Ga.),
on change of venue, No. 87CR-5345 (Super. Ct. Muscogee County, Ga.

See also Paduano & Smith, supra note 101, at 331-33 &
n.201-03 (other examples where life sentences have been obtained
for those previously sentenced to death at trials where they were
represented by incompetent counsel).
Page 41

the original trials. But, as shown by the many cases summarized
here in which executions were carried out, many of those facing
the death penalty never receive the representation that would make
such a difference.
The right to counsel is essential to protect all other rights
of the criminally accused. Yet this most fundamental right has
received the least protection. Nevertheless, many members of the
judiciary and the bar—who have a special responsibility to uphold
the rule of law in the face of public outrage and revulsion—stand
by year after year, case after case, looking the other way,
pretending that nothing is amiss, or calling upon someone else to
solve the problem, but never engaging in a concerted and effective
effort to change the situation. The United States Department of
Justice, the state District Attorneys, and state Attorneys
General, all of whom should have some concern about the fairness
and integrity of the judicial process, use their power and
influence to make the situation even worse. As a result, although
some solutions to the problem are apparent, the situation
continues to deteriorate and, tragically, to be increasingly
accepted as the inevitable lot of the poor.

A. Minimal Reforms in Response to Major Crisis
Over ten years ago, the ABA and the National Legal Aid and
Defender Association found the funding for indigent defense
inadequate and deemed the promise of Gideon v. Wainwright
unrealized, stating: “we must be willing to put our money where
our mouth is; we must be willing to make the constitutional
mandate a reality.”180 However, despite many reports with similar
warnings,181 another ABA report in 1993 still found that “long-term
neglect and underfunding of indigent defense has created a crisis
of extraordinary proportions in many states throughout the country.”182
In Alabama, ten reports over eleven years pointed out the
many defects in representation of indigent defendants.183 Judges,
court administrators, and the bar have recommended reform. A
commission proposed in 1988 that the limits on attorneys fees in
capital cases be eliminated or raised,184 but the legislature has


Many of the reports are summarized in KLEIN & SPANGENBERG,
supra note 82, at 10; Klein, supra note 80, at 393.

KLEIN & SPANGENBERG, supra note 82, at 25.


Klein, supra note 80, at 402-03; Friedman & Stevenson,
supra note 48, at 23 n.112.

Page 42




supra note 48, at 40 n.201. The

done nothing to change the limit on compensation for out-of-court
time expended by attorneys in capital cases.185 As a result, and
despite repeated acknowledgement of the problem, the quality of
indigent defense in Alabama remains a disgrace.
Limits on compensation have been struck down by courts in a
number of states.186 However, even as courts have recognized the
unreasonableness of the low fees, the adverse impact of such low
fees on the right to counsel and a fair trial, and their own
constitutional duty to do something about it,187 they have often
ordered only minimal, inadequate reforms.
Alabama Court of Appeals has also urged the Alabama Supreme Court
to reconsider its decisions upholding the constitutionality of the
$1000 limit on attorney compensation in criminal cases, observing
that “[t]he real value of $1,000 is considerably less today” than
when set in 1981 and is “certainly unreasonable.” May v. State,
No. CR-92-350, 1993 Ala. Crim. App. LEXIS 1076 (1993). However,
one of the five members of the court disagreed, arguing that the
question of adequate compensation was a matter for legislation.
Id. (Montiel, J., dissenting). See also Ex parte Grayson, 479 So.
2d 76 (Ala. 1985), cert. denied, 474 U.S. 865 (1985) (upholding
against due process and equal protection attacks Alabama's system
for compensating appointed attorneys); Sparks v. Parker, 368 So.
2d 528 (Ala. 1979) (holding that the limit does not constitute
unlawful taking of property), appeal dismissed, 444 U.S. 803

“Many legislators seem to fear that support for funding for
defense services in capital cases is somehow the same as support
for violent crime.” Friedman & Stevenson, supra note 48, at 41-42.

DeLisio v. Alaska, 740 P.2d 437, 443 (Alaska 1987); Arnold
v. Kemp, 813 S.W.2d 770 (Ark. 1991); White v. Board of County
Comm'rs, 537 So. 2d 1376, 1379 (Fla. 1989); Makemson v. Martin
County, 491 So. 2d 1109, 1112, 1114 (Fla. 1986), cert. denied, 479
U.S. 1043 (1987); State ex rel. Stephan v. Smith, 747 P.2d 816
(Kan. 1987); State v. Lynch, 796 P.2d 1150 (Okla. 1990); Jewell v.
Maynard, 383 S.E.2d 536, 547 (W. Va. 1989).

See, e.g., Wilson v. State, 574 So. 2d 1338, 1340 (Miss.
1990). There, in considering a challenge to the $1000 limit on
attorney compensation in capital cases, the Mississippi Supreme
constitutional mandate to furnish the absolute essentials required
for the operation of an independent and effective court, then no
court affected thereby should fail to act. It is the absolute duty
of a court in such latter circumstances to act and act promptly.”
Id. (quoting Hosford v. State, 525 So. 2d 789, 797-98 (Miss.
1988)). Nevertheless, the court refused to interfere with the
Mississippi's limit of $1000 in compensation for the defense of
capital cases to stand. Id.
Page 43

A challenge to Mississippi's limit of $1000 for compensation
to lawyers appointed to defend capital cases was rejected by the
state's supreme court.188 The court held that lawyers were entitled
to reimbursement for actual costs, including the overhead cost of
operating a law office, so that “the attorney will not actually
lose money,”189 but characterized the $1000 fee as “an `honorarium'
or pure profit.”190 One justice published a dissent, which had
initially been prepared as the majority opinion, that carefully
analyzed how the statutory limit on compensation adversely
affected the right to counsel and the administration of justice in
violation of the Constitution.191 However, because that opinion was
not supported by a majority of the court, an attorney appointed to
defend a capital case in Mississippi, while no longer required to
lose money, may still make less than the minimum wage.192
The Louisiana Supreme Court, considering a capital case in
which assigned counsel was neither compensated nor reimbursed for
expenses, held that counsel were entitled to reimbursement for
out-of-pocket and overhead costs, overruling contrary state
precedent,193 but held that a “fee for service need not be paid” as
long as the time required to defend the case does not reach
“unreasonable levels.”194
The South Carolina Supreme Court struck down that state's
statutory limitations on compensation of appointed counsel in
capital cases.195 The statutes provided for $15 per hour of incourt time and $10 per hour of out-of-court time for attorneys,
with a limit of $5000 per case for attorneys fees, expert and
investigative services, and costs.196 Even in doing so, however,

Id.; Pruett v. State, 574 So. 2d 1342 (Miss. 1990).


Wilson, 574 So. 2d at 1341.














All of the attorneys in the Wilson and Pruett cases
received less than the minimum wage. The two attorneys for Wilson
documented 779.2 and 562 hours and the two attorneys for Pruett
documented 449.5 and 482.5 hours. Each attorney was paid $1000 for
his time. Thus, the rates ranged from $1.28 per hour to $2.22 per
hour. Id. at 1348 n.7 (Anderson, J., dissenting).

State v. Wigley, 624 So. 2d 425, 428-29 (La. 1993)
(overruling in part State v. Clifton, 172 So. 2d 657 (La. 1965)).

Page 44


Id. at 429.


Bailey v. State, 424 S.E.2d 503, 508 (S.C. 1992).


Id. at 505.

the court discussed the fee limitations in the context of “the
legal profession's traditional and historic role in the general
society. It is a role anchored to the postulate that the practice
of law is not a marketplace business or commercial venture but,
rather, a profession dedicated primarily to service.”197 The court
accordingly held that “[t]he appointed attorney should not expect
to be compensated at market rate, rather at a reasonable, but
lesser rate” to be fixed in the court's discretion at the
conclusion of the trial.198
One would hope that such an undesirable assignment as
defending a person in a capital case would be compensated at rates
greater than market rates, not less. In civil rights cases, the
undesirability of a case is a factor used to multiply or enhance
an attorneys fee award.199 For example, prison conditions cases
have been found to be “undesirable” for purposes of determining
whether to enhance attorneys fees.200 However, legislatures and
courts have simply been unwilling to pay sufficient rates to
attract lawyers to handle capital cases.
There have been few systematic challenges to the inadequacy
of legal representation for the poor, and they have produced only
limited results.201 Some hope of reforming Georgia's indigent
defense system appeared when a federal court of appeals held that
a challenge to deficiencies in the system stated a claim and
should not have been dismissed.202 However, after a change in the

Id. at 504.


Id. at 508.


See, e.g., Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 719 (5th Cir. 1974).

E.g., Alberti v. Sheriff of Harris County, 688 F. Supp.
1176, 1198-99 (S.D. Tex. 1987) (prison conditions litigation per
se undesirable), modified on other grounds, 688 F. Supp. 1210
(S.D. Tex. 1987), aff'd in part and rev'd in part sub nom. Alberti
v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), opinion vacated in
part on reh'g, 903 F.2d 352 (5th Cir. 1990) (per curiam).

See, e.g., Tucker v. Montgomery Bd. of Comm'rs, 410 F.
Supp. 494 (M.D. Ala. 1976); Wallace v. Kern, 392 F. Supp. 834
(E.D.N.Y.), rev'd, 481 F.2d 621 (2d Cir. 1973), cert. denied, 414
U.S. 1135 (1974); State v. Smith, 681 P.2d 1374 (Ariz. 1984).
These and other efforts to bring deficient indigent defense
systems into compliance with the Constitution are described in
Klein, supra note 80, at 410-13, 417-18. See also Paul C.
Drecksel, The Crisis in Indigent Criminal Defense, 44 ARK. L. REV.
363, 387-90 (1991); Caroline A. Pilch, Note, State v. Smith:
Placing a Limit on Lawyers' Caseloads, 27 ARIZ. L. REV. 759 (1985).

Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988),
reh'g denied, 896 F.2d 479 (1989), cert. denied, 495 U.S. 957
Page 45

composition of the court, the case was dismissed on abstention
grounds.203 The federal courts also refused on abstention grounds
to examine Kentucky's limit on attorneys' compensation in capital
Despite abundant documentation of the enormity of the need
for substantive changes, some continue to suggest that the burden
of providing counsel to the poor—even in capital cases—may be
profession.205 However, it is the constitutional duty of the
state,206 not of members of the legal profession, to provide
indigent defendants with counsel. Responses to the problems posed
by ineffective assistance of counsel should be conceived in a way
that gives effect to this principle. Georgia, a state in which
there have been numerous egregious examples of deficient
representation, has no difficulty coming up with local, state, and
federal money to prepare for the Olympic Games, but it does not
secure or appropriate funding to assure competent representation
and equal justice in its courts.207
Though it is desirable for more members of the legal
profession to shoulder their ethical obligations to provide legal
assistance for the poor, the defense of capital cases often
requires more expertise, commitment, and resources than individual
lawyers are able to offer. And there are too many cases for the

Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992), reh'g en
banc denied, 983 F.2d 1084 (11th Cir. 1993).

Foster v. Kassulke, 898 F.2d 1144 (6th Cir. 1990).


Martin County v. Makemson, 479 U.S. 1043, 1045 (1987)
(White, J., dissenting from denial of certiorari) (“I discern
nothing in the Sixth Amendment that would prohibit a State from
requiring its lawyers to represent indigent criminal defendants
without any compensation for their services at all.”); Wilson v.
State, 574 So. 2d 1338, 1341 (Miss. 1990); State v. Wigley, 624
So. 2d 425, 427-29 (La. 1993).

State ex rel. Stephan v. Smith, 747 P.2d 816, 835-37, 84142 (Kan. 1987); Wilson, 574 So. 2d at 1342 (Robertson, J.,

Another example of the low priority that states give to
their obligation to assure equal justice can be found in Kentucky,
where the indigent defense budget for 1990 of $11.4 million was
four million less than the University of Kentucky's athletic
department for the same year. Edward C. Monahan, Who is Trying to
Kill the Sixth Amendment? A.B.A. CRIM. JUST., 24, 52 (Summer 1991).
Kentucky's funding for indigent defense for one year would build
but four miles of two-lane highway. Id. at 51-52.
Page 46

lawyers who do respond. Moreover, the absence of indigent defense
programs limits the opportunity for young, committed lawyers to
enhance their skills and learn to do the job properly. Beyond
these difficulties, even the most conscientious lawyer needs
proper investigative and expert assistance to defend a capital
Moreover, to ask for such major sacrifices for such an
overwhelming and thankless job as defending a capital case from a
few members of the profession is unreasonable. Judges are not
presiding without compensation, and district attorneys are not
prosecuting without decent salaries. And most members of the legal
profession—particularly those at the high income law firms which
have the litigation skills and resources equal to the task—are not
being asked to share the burden of defending the poor. The supply
of lawyers who are willing to make the sacrifice has never come
close to satisfying the desperate needs of the many poor who face
the death penalty throughout the country today.
Georgia Chief Justice Harold Clarke's description of
Georgia's response to the need for indigent defense applies to
most other states as well: “[W]e set our sights on the
embarrassing target of mediocrity. I guess that means about
halfway. And that raises a question. Are we willing to put up with
halfway justice? To my way of thinking, one-half justice must mean
one-half injustice, and one-half injustice is no justice at
B. The Politics of Crime and the
Lack of Leadership To Remedy the Situation
At this time, there appears to be little prospect of achieving even the level of mediocrity that Justice Clarke described.
What is needed to provide competent legal representation to any
litigant, rich or poor, is no secret. But significant improvement
in the quality of representation for the poor is unlikely because
of the unpopularity of those accused and the lack of leadership
and commitment to fairness of those entrusted with responsibility
for the justice system.
A properly working adversary system will never be achieved
unless defender organizations are established and properly funded
to employ lawyers at wages and benefits equal to what is spent on
the prosecution, to retain expert and investigative assistance, to
assign lawyers to capital cases, to recruit and support local
lawyers, and to supervise the performance of counsel defending
capital cases. Judges are not equipped to do this. Management of
the defense is not a proper judicial function. And, as previously
considerations influence elected state court judges in their
appointment of lawyers to defend those facing the death penalty.

Chief Justice Harold G. Clarke, Annual State of the
Judiciary Address, reprinted in FULTON COUNTY DAILY REP., Jan. 14,
1993, at 5.
Page 47

What is needed is a system in which defense counsel's loyalty
is to the client and not the judge; and in which defense counsel,
as well as the prosecutor, understands the scientific and legal
issues in the case and has access to the investigative and expert
assistance needed to prepare and present the case. The ABA has
promulgated standards for the appointment and performance of
counsel in capital cases,209 which are seldom followed today, but
standards mean nothing without capable attorneys and well-funded
defender organizations to implement them.210
Moreover, it must be recognized that defending capital cases
is a most unattractive responsibility for most members of the
legal profession. With the increasing number of state and federal
capital prosecutions, it will be more and more difficult to find
enough capable lawyers willing to defend the cases. It should be
recognized that, as in other difficult and undesirable areas of
practice, a significant financial incentive, considerably beyond
what lawyers receive for far less demanding legal work, will be
Such a system would require a substantial commitment of
resources. The argument has been made that some jurisdictions do
not have the money to attract qualified lawyers and that in some
areas, particularly rural areas, qualified counsel is simply not
available.211 But these considerations should not excuse the lack
of adequate legal representation in capital cases. There are
communities that have no pathologists, hair and fiber experts,
evidence technicians, and others needed for the investigation and
prosecution of homicide cases. However, when a murder occurs in
those communities and is followed by a capital prosecution, the
prosecution invariably brings in the experts needed and pays what
it costs to do so.










Standards for the appointment of counsel, which are defined
in terms of number of years in practice and number of trials, do
very little to improve the quality of representation since many of
the worst lawyers are those who have long taken criminal
appointments and would meet the qualifications. Such standards can
actually be counterproductive because they may provide a basis for
denying appointment to some of the most gifted and committed
lawyers who lack the number of prior trials but would do a far
better job in providing representation than the usual court-appointed hacks with years of experience providing deficient

See, e.g., Report of Malcolm Lucas to ABA Task Force Report
on the Death Penalty, 40 AM. U. L. REV. 195, 197 (1990). The
expense of providing more qualified counsel is repeatedly urged as
a reason to defeat legislation aimed at improving representation
in capital cases.
Page 48

There was a time when many localities did not have capable
law enforcement agencies or pathologists, fingerprint examiners,
ballistics experts, serologists, and other forensic scientists
needed to investigate and prosecute crime. These deficiencies were
remedied in most places, often with funding from the Federal Law
Enforcement Assistance Administration as well as state and local
governments. Crime laboratories were built, local police officers
were sent to FBI training programs, and pools of experts were
developed who travel around states to investigate crime scenes and
testify in local prosecutions.
organizations to provide lawyers with the expertise required to
defend capital cases, and the investigators and expert assistance
needed to prepare the defense of these cases. What is lacking is
not money, but the political will to provide adequate counsel for
the poor in capital and other criminal cases. Adequate
representation and fairness will never be achieved as long as it
is accepted that states can pay to prosecute a capital case
without paying to defend one. Adequate representation and fairness
will never be achieved until ensuring justice in the courts
becomes a priority equal to public concern for roads, bridges,
schools, police protection, sports, and the arts.
But the leadership needed to help bring about justice is
missing. There was a time when the Attorney General of the United
States and the attorneys general in many of the states were
concerned not just with getting convictions, but also with
fairness, integrity, and the proper functioning of the adversary
In that spirit, Attorneys General Walter F. Mondale of
Minnesota and Edward J. McCormack, Jr. of Massachusetts, and
twenty-one of their fellow attorneys general filed a brief in
support of 212
Clarence Earl Gideon's right to counsel in Gideon v.
It was out of that same concern that Attorney
General Robert F. Kennedy helped secure passage of the federal
Criminal Justice Act in 1963. But those days are gone.
Today, the United States Department of Justice, state district attorneys, and state attorneys general use their power and
influence to make this shameful situation even worse. They take
every advantage of the ignorant, incompetent lawyers foisted upon
the poor.213 They have defended in the courts even the most outra212


372 U.S. 335, 336 (1963).

At the urging of prosecutors, the federal courts and many
state courts have increasingly refused to consider constitutional
issues even where the failure to raise them was the result of
ignorance, neglect, or inadvertent failure to raise and preserve
an issue by a court-appointed lawyer. Coleman v. Thompson, 111 S.
Ct. 2546 (1991) (“[A]ttorney ignorance or inadvertence is not
`cause'” to excuse filing of notice of appeal three days late, as
indigent prisoner “must bear the risk of attorney error”)
(quotation omitted); Dugger v. Adams, 489 U.S. 401, 406-08 (1989)
Page 49

geous instances of incompetence on the part of defense counsel
previously described and used the ineptness of counsel as a
barrier to prevent courts from addressing constitutional violations in capital cases.
Despite abundant evidence of poor lawyering and egregious
constitutional violations in capital cases, the Justice Department
and many prosecutors have proposed shortcuts and procedural traps
to paper over the problems and speed up the process of sending
those sentenced to death at unconstitutional trials to their
executions. In response to findings by federal courts of
constitutional violations in state capital cases, prosecutors have
urged stricter enforcement of procedural default rules to avoid
dealing with the violations,214 not better counsel to avoid those
(barring relief because trial lawyer did not object to jury instructions even though court of appeals had unanimously concluded
that death penalty was unconstitutionally imposed due to those instructions); Smith v. Murray, 477 U.S. 527, 539 (1986) (Stevens,
J., dissenting) (barring issue not properly raised on appeal even
though “[t]he record . . . unquestionably demonstrates that
petitioner's constitutional claim is meritorious, and that there
is a significant risk that he will be put to death because his
constitutional rights were violated”); Murray v. Carrier, 477 U.S.
478, 488 (1986) (holding that attorney “ignorance or inadvertence”
does not constitute cause to excuse failure to raise Fourteenth
Amendment claim in earlier proceeding). Three of these cases—all
except Murray v. Carrier—were capital cases. In each of those
cases, the defendant has been executed without a determination of
the constitutional issue because of the attorney error.
As a result of the complexity of the procedural rules and the
lack of familiarity with them by many of the lawyers appointed to
defend the poor, executions are now routinely carried out without
review by any court of significant constitutional issues because
of errors by counsel. See, e.g., Whitley v. Bair, 802 F.2d 1487,
1496 n.17 (4th Cir. 1986) (finding that all 15 issues raised on
behalf of Whitley were barred because they had not been properly
raised by his trial lawyer), cert. denied, 480 U.S. 951 (1987).
Today, it is unusual to see a capital case in which one or more
issues presented in federal habeas corpus review is not found to
be procedurally barred.

For example, the Mississippi Attorney General urged the
state's supreme court to invoke procedural bars as means of
preventing federal review—characterized by the Attorney General as
“a Crash Upon the Rocky Shores of the Federal Judiciary”—following
findings of constitutional violations in seven of the first eight
Mississippi capital cases reviewed by the federal courts. Wheat v.
Thigpen, 793 F.2d 626 n.5 (5th Cir. 1986), cert. denied, 480 U.S.
930 (1987) (quoting State's Response, Edwards v. Thigpen, 433 So.
2d 906 (Miss. 1983), cert. denied, 480 U.S. 930 (1987)). The
Mississippi Supreme Court adopted the state's position. Edwards v.
Thigpen, 433 So. 2d 906 (Miss. 1983).
Page 50

unconstitutional trials in the first place. Justice James
Robertson of the Mississippi Supreme Court described as “unseemly”
the arguments of that state's attorney general that the court
“should hold [the defendant's] claims procedurally barred, not
because such would promote the interests of justice, but rather
that such would pull the rug out from under [him] when he
ultimately seeks federal review of his case.”215 An accommodating
Supreme Court has been willing to cut back drastically on the
availability of the once great writ of habeas corpus,216 and
Similarly, after federal habeas corpus relief was granted to
a number of people in Georgia who had been sentenced to death,
Georgia amended its state postconviction statute in 1982 to
prohibit consideration in state habeas proceedings of issues not
raised in compliance with Georgia's procedural rules at trial and
on appeal. GA. CODE ANN. § 9-14-51(d) (1993). The statute had
previously provided that “rights conferred or secured by the
Constitution of the United States shall not be deemed to have been
waived unless it is shown that there was an intentional
relinquishment or abandonment of a known right or privilege . . .
participated in by the party and . . . done voluntarily, knowingly, and intelligently.” 1967 Ga. Laws 835, 836, § 3; 1975 Ga. Laws
1143-44, § 1.

Evans v. State, 441 So. 2d 520, 531 (Miss. 1983) (Robertson, J., dissenting), cert. denied, 467 U.S. 1264 (1984); see also
Hill v. State, 432 So. 2d 427, 444-51 (Miss. 1983) (Robertson, J.,

Justice Stevens has expressed the view that the Supreme
Court has “grossly misevaluate[d] the requirements of `law and
justice' that are the federal court's statutory mission under the
federal habeas corpus statute” and instead “lost its way in a
procedural maze of its own creation.” Smith v. Murray, 477 U.S.
527, 541 (1986) (Stevens, J., dissenting). Justice Blackmun,
writing for four members of the Court in Dugger v. Adams, accused
the majority of “arbitrarily impos[ing] procedural obstacles to
thwart the vindication of what apparently is a meritorious Eighth
Amendment claim.” Dugger v. Adams, 489 U.S. 401, 412-13 (1989).
In addition to the strict enforcement of procedural rules,
the Supreme Court has limited the availability of the writ to
vindicate constitutional rights by making it more difficult to
obtain an evidentiary hearing to prove a constitutional violation,
Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992); adopting an extremely restrictive doctrine regarding the retroactivity of
constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S.
Liebman, More than “Slightly Retro:” The Rehnquist Court's Rout of
Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. REV. L. &
SOC. CHANGE 537 (1991); reducing the harmless error standard for
constitutional violations recognized in federal habeas review,
Brecht v. Abrahamson, 113 S. Ct. 1710 (1993); and restricting when
a constitutional violation may be raised in a second habeas petiPage 51

prosecutors have supported even more drastic legislative proposals
to restrict it further.217
tion. McCleskey v. Zant, 499 U.S. 467 (1991).

The Justice Department and the associations of district
attorneys and attorneys general have supported a statute of
limitations for habeas corpus cases since one was proposed by a
committee appointed by Chief Justice William Rehnquist and chaired
by retired Justice Lewis Powell in 1989. Report of the Ad Hoc
Committee on Federal Habeas Corpus in Capital Cases, 45 Crim. L.
Rep. (BNA) 3239 (Sept. 27, 1989). Senator Joseph Biden introduced
a bill in 1993 containing a statute of limitations and other
provisions regarding habeas corpus which had been drafted in
sessions with representatives of the Justice Department, state
attorneys general, and state district attorneys, all of whom were
said to support the bill. 139 CONG. REC. S10925-27 (daily ed. Aug.
6, 1993). The bill appears id. at S10927-31.
Some prosecutors have even proposed the virtual elimination
of habeas corpus review by extending to all issues the rule of
Stone v. Powell, 428 U.S. 465 (1976), which bars federal habeas
review of Fourth Amendment claims where there has been a “full and
fair” hearing in the state courts. See, e.g., Hearings Before the
Senate Comm. on the Judiciary, on S. 88, S. 1757, and S. 1760,
101st Cong., 1st & 2d Sess. 759, 784 (1990) (Testimony of Ala.
Assistant Attorney General Ed Carnes, Feb. 21, 1990, urging
passage of S. 1971 because that one provision “considered alone”
makes it preferable to other legislation); Letter from Alabama
Attorney General Don Siegelman and 22 Other State Attorneys
General to Senator Joseph Biden (Mar. 12, 1990) (urging extension
of “full and fair” rule to all claims to “accomplish true federal
habeas reform”) (on file with author); Hearings Before the
Subcomm. on Civil and Constitutional Rights of the House Comm. on
the Judiciary, 102d Cong., 1st Sess. 172-82 (1991) (Statement of
Andrew G. McBride, Associate Deputy Attorney General, Department
of Justice).
The “full and fair” provision was included in Section 205 of
the Bush Administration's Comprehensive Violent Crime Control Act
of 1991, S. 635, 102d Cong., 1st Sess. (1991), sponsored by
Senator Strom Thurmond, which was included in the crime bill
passed by the Senate on July 17, 1991. S. 1241, 102d Cong., 1st
Sess. (1991). However, the Senate and House were unable to agree
on a crime bill in 1991 so the provision did not become law. Even
Chief Justice Rehnquist, who has led the judicial and legislative
efforts to restrict habeas corpus, opposed the “full and fair”
proposal. Linda Greenhouse, Rehnquist Urges Curb on Appeals of
Death Penalty, N.Y. TIMES, May 16, 1990, at A1. And the Supreme
Court, which has cut back repeatedly on the availability of habeas
corpus since 1977, refused, in Withrow v. Williams, 113 S. Ct.
3066 (1993), to extend the “full and fair” standard to issues involving violations of Miranda v. Arizona, 384 U.S. 436 (1966).
Page 52

Many prosecutors have been unwilling to agree to even the
most minor reforms to improve the quality of legal representation
received by the poor. Federal legislation was proposed in 1990
that would have restricted imposition of the procedural default
doctrines unless states improved the quality of defense counsel.
One proposal would have required the establishment of an appointing authority for counsel in capital cases composed either of a
statewide defender organization or of a death penalty resource
center.218 The appointing authority would have been responsible for
securing qualified counsel and engaging in periodic review to
ensure the competence of representation. The legislation would
also have set standards for counsel and required payment for
counsel “at a reasonable rate in light of the attorney's qualifications and experience and the local market for legal representation in cases reflecting the complexity and responsibility of
capital cases.”219
This modest proposal evoked vehement opposition from the U.S.
Department of Justice and state prosecutors. William P. Barr,
characterized the counsel provisions as “an elaborate and expensive system for appointing counsel” that were “inimical to the
principles of federalism inherent in our constitutional system,
and to the need for reasonable finality of state criminal judgments.”220 A letter signed by the attorneys general of twenty-three
states which have the death penalty described the provisions as
“so extreme as to be absurd.”221 The twenty-three attorneys general
asserted: “The current problems which beset capital cases are not
caused by the quality of representation they receive” and that
“the focus in capital cases should be on the guilt or innocence of
the defendant and the sentence he should receive” and not “how
many seminars a defense attorney has attended, how well he is

H.R. 4737, § 8(b) (1990), reprinted in Hearings Before Subcomm. on Courts, Intellectual Property and the Administration of
Justice of the House Judiciary Comm. on H.R. 4737, H.R. 1090, H.R.
1953, and H.R. 3584, 101st Cong., 2d Sess. 3, 11 (1990) [hereinafter House Hearings].

H.R. 4737, § 8(e)-(g) (1990), House Hearings, supra note
217, at 14-16; see also H.R. 5269, § 1307(e)-(g) (1990), House
Hearings, supra note 217, at 486-91.

Detailed Comments on H.R. 5269 Submitted with Letter from
William P. Barr to Thomas S. Foley, Speaker of the U.S. House of
Representatives (Sept. 10, 1990), reprinted in House Hearings,
supra note 217, at 723, 746-47.

Letter from Don Siegelman, Attorney General of Alabama et
al., to Jack Brooks, Chairman of the House Judiciary Committee
(July 13, 1990), reprinted in House Hearings, supra note 217, at
654, 656.
Page 53

paid, and other collateral matters.”222 The National Association of
District Attorneys adopted a resolution opposing the legislation,
reiterating its support for the procedural default doctrines and
“strongly oppos[ing] any legislation” which would “create new
requirements concerning the experience, competency, or performance
of counsel” beyond Strickland v. Washington.223
A bill introduced in 1993 would have required only a “certifying” authority to identify lawyers to defend capital cases,
allowing judges to continue to appoint counsel and setting only
minimal standards measured in terms of years of practice and
number of cases with no inquiry into quality of work.224 Although
representatives of the state attorneys general and district
attorneys associations were involved in drafting the legislation,225 which would, in fact, do little to improve the quality of
representation and could even worsen the situation,226 it was
opposed by many prosecutors.227 One letter circulated among Sena222

Id. The letter suggests that “delay” and “relitigation” are
the major problems.

Resolution Opposing Habeas Reform Legislation, reprinted in
House Hearings, supra note 217, at 649.

The Habeas Corpus Reform Act of 1993, S. 1441, 103d Cong.,
1st Sess. § 8 (1991) (introduced by Senator Biden on August 6,
1993, 139 CONG. REC. S10925-31 (daily ed. Aug. 6, 1993)). The bill
also contained a statute of limitations and other restrictions on
habeas corpus.

139 CONG. REC. S10925-27 (daily ed. Aug. 6, 1993). No one
involved in the defense of capital cases or representation of
petitioners in habeas corpus actions was included by Senator Biden
or his staff in the meetings which led to the bill.

The bill did not remove the judge as the appointing
authority. Most of the incompetent lawyers providing representation would still qualify under the bill's requirements of a
certain number of years of practice or trials, but many conscientious and capable young lawyers would be excluded.

California Attorney General Daniel E. Lungren asserted that
the bill “could appropriately be called the `Capital Defense
Attorney Employment Act of 1993'” and urged its defeat because it
would “raise the overall cost of capital litigation by imposing
new federal standards” and result in additional litigation. Letter
from Daniel E. Lungren to Senator Diane Feinstein (Aug. 13, 1993)
at 15 (on file with author). The California District Attorneys
Association adopted a resolution opposing any legislation which
[C]reate new requirements concerning the experience,
competency, or performance of counsel beyond those
Page 54

tors criticized its “expansive and costly appointment of counsel
provisions” and quoted the Attorney General of Georgia as saying
that, if enacted, the bill would “effectively repeal the death
Such hyperbolic statements have repeatedly greeted other
efforts to improve the quality of legal representation in capital
cases. When the Georgia legislature, after years of refusing to
appropriate any funds for indigent defense,229 finally responded
grudgingly to the eloquent appeals of the chief justice of the
state's supreme court230 by creating in 1992 a small capital defender program that employed only four attorneys,231 one district
interpreted in Strickland v. Washington. . . .
appointment of counsel for state court proceedings or
take away the traditional authority to appoint counsel
from state court judges. . . .
[E]stablish stringent federal qualifications for the
appointment of counsel (including the appointment of at
least two attorneys beginning at the state trial stage)
which would delay death penalty cases by the inability
to locate a sufficient number of attorneys who can meet
all of the mandatory standards. . . .
California District Attorneys Association, Resolution Concerning
Federal Habeas Corpus Reform Legislation (adopted Aug. 12, 1993)
(on file with author).

Letter from Senators Orin G. Hatch, Strom Thurmond, Diane
Feinstein, and Richard Shelby to Colleagues (Nov. 2, 1993) (on
file with author).

Georgia State Senator Gary Parker explained to an American
Bar Association committee: Although many of my colleagues in the
independent capital defender office staffed by experienced capital
trial counsel—they are unquestionably unwilling, as they have
demonstrated year after year, to appropriate the funds. . . .
Quite to the contrary, support for indigent defense is viewed by
many in this state as being soft on crime.
Testimony of Gary Parker to the ABA Task Force on Death Penalty
Habeas Corpus, quoted in American Bar Association, supra note 9,
at 221 n.38.

Harold G. Clarke, Money v. Justice in Georgia (“State of
the Judiciary Address” to the Georgia General Assembly), reprinted
in FULTON COUNTY DAILY REP., Jan. 22, 1992, at 8; Harold G. Clarke,
State of the Judiciary (Address to the State Bar of Georgia),
reprinted in GA. ST. B.J., Aug. 1991, at 70.

GA. CODE ANN. § 17-12-91 (1992). There are over 120 capital
indictments pending in Georgia at any given time, so the program
can handle only a small portion of the cases.
Page 55

attorney criticized it as a step toward abolishing the death
penalty in Georgia.232 When a report to the Texas Bar described the
serious deficiencies of the representation in capital cases in
that state, the district attorney in Houston dismissed it as an
argument against the death penalty.233
The enthusiasm of prosecutors to continue to take every
advantage has not been tempered by the poverty and powerlessness
of those accused of capital crimes. Nor has the situation motivated a new presidential administration or a new Attorney General
to rein in the assaults on the Bill of Rights and habeas corpus or
question the power that state courts should be allowed to exercise
over the lives of persons who are not provided adequate
representation.234 Instead, the country is engaged in a crime debate in which politicians try to outdo one another in proposing
crime bills which simultaneously expand the use of the death
penalty and other severe penalties while restricting or eliminating procedural protections. Those who are supposedly leaders
dismiss the Bill of Rights as a mere collection of technicalities.
The debate is exceptionally one-sided. For, as Robert F. Kennedy
said long ago, the poor person accused of a crime has no lobby. No
member of Congress or a state legislature is likely to receive
complaints about the quality of counsel for poor people accused of
crimes. But lost in the effort to get tough on crime is concern
about the fairness and integrity of the criminal justice system.
Completely missing from the crime debate and from the courts
is the notion that if it is too expensive or impractical for some
jurisdictions to provide competent counsel and the fairness and
reliability that should accompany a judicial decision to take a
human life, their power should be limited. If a local trial court
cannot comply with the most fundamental safeguard of the Constitution by providing a capable attorney to one whose life is at
stake, it should not be authorized to extinguish life. The solu232

Kimball Perry, Poor People To Get Added Help in Courts,

Gary Taylor, Texas Death-Penalty Study Hit, NAT'L L.J., Apr.
26, 1993, at 3, 50. Taylor quoted Harris County District Attorney
John B. Holmes, Jr., as saying: “If you're against the death
penalty, argue against the issue. But don't come in the back door
with so much financial baggage that the law can't work. That just
promotes more disrespect for the law.” Id. at 50. Holmes also said
that there was “too much habeas.” Id.

President Clinton used the death penalty to establish his
credentials as a “new Democrat” who was tough on crime by
returning to Arkansas during the presidential campaign to deny
clemency and allow the execution of a severely brain damaged man.
See Marshall Frady, Death in Arkansas, NEW YORKER, Feb. 22, 1993,
at 105. President Clinton has supported legislation to make over
50 federal crimes punishable by death.
Page 56

tion is not to depreciate human life and the Bill of Rights by
accepting what is available. Many small communities do not have
surgeons, yet they do not rely on chiropractors to perform heart
Pronouncements about the importance of and the need for
counsel do not make quality representation a reality. It has
become apparent that the legislatures of most states, particularly
those where the death penalty is frequently imposed, are not going
to discharge their constitutional duty to appropriate funds and
provide competent legal assistance for poor persons in criminal
cases. It is also unlikely that the judiciary and bar, after years
of neglect, punctuated by occasional moments of hand wringing,
will respond effectively to this worsening situation.
The quality of legal representation in capital cases in many
states is a scandal. However, almost no one cares. Those facing
the death penalty are generally poor, often members of racial
minorities, often afflicted with substantial mental impairments,
and always accused of serious, terrible crimes. The crimes of
which they are accused bring out anger, hatred, and a quest for
vengeance on the part of most people, including judges,
prosecutors, and, quite often, even those appointed to represent
the accused. All of this leads to, at best, indifference and, more
often, hostility toward the plight of those accused. And many
outside the criminal justice system are indifferent because they
are unaware of what passes for justice in the courts. There is a
growing cynicism about the importance of due process and the
protections of the Bill of Rights. Many of those who hold or
aspire to public office find it impossible to resist the
temptation to resort to demagoguery to exploit these sentiments.
But this reality does not excuse the constitutional
responsibility of the judiciary and members of the legal
profession to ensure that even the most despised defendants still
receive the highest quality legal representation in proceedings
that will determine whether they live or die. Justice William
Brennan, with his usual eloquence, once observed in another
It is tempting to pretend that [those] on death row
share a fate in no way connected to our own, that our
treatment of them sounds no echoes beyond the chambers
in which they die. Such an illusion is ultimately
corrosive, for the reverberations of injustice are not
so easily confined. . . . [T]he way in which we choose
those who will die reveals the depth of moral
commitment among the living.235

McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J.,
Page 57

Unfortunately, what has been revealed about the depth of
moral commitment among legislators, members of the bar, and the
judiciary is very discouraging. It is unlikely that the promise of
Powell and Gideon will ever be fulfilled for most of those accused
of criminal violations. Legislatures are unwilling to pay the
price for adequate representation, most courts are unwilling to
order it, and most members of the bar are unwilling or unable to
take on the awesome responsibility of providing a vigorous defense
without adequate compensation.
The best hope for most of those facing the death penalty is
that capable lawyers will volunteer to take their cases and
provide proper representation regardless of whether they are paid
adequately or at all. A member of the New York Court of Appeals,
citing the ethical obligation of lawyers to recognize deficiencies
in the legal system and initiate corrective measures,236 has urged
lawyers to respond to the challenge of seeing that those who face
the worst penalty receive the best representation.
During the civil rights movement of the fifties
and especially the sixties, inspired attorneys, not all
young neophytes, travelled often at great personal
expense and real risk, including their own deaths, to
make a difference. That spirit needs to be revived.
Right now, it fuels only a few who are to be commended
for what they are trying to do, but it has not
motivated a sufficient number of people in our profession to do their needed parts, too. Until that conversion comes about, Lady Justice may as well keep her
eyes blindfolded so as not to notice with shame the
grotesque imbalance in the scales of justice that hang
from her fingertips, because of the growing numbers of
death penalty cases in this great country that are
finally, really finally, resolved under such disproportionate odds and resources.237

2'(/ &2'( 2) 352)(66,21$/ 5(63216,%,/,7< (&
02'(/ 58/(6 2) 352)(66,21$/ &21'8&7 5XOH  





















Page 58


















persons represented. Indeed it is hard to imagine how a member of
the legal profession could make a greater difference than by
saving a client from execution. But the response of individual
lawyers will not be nearly enough to end the systemic problems
previously described and provide adequate representation to the
thousands of people facing the death penalty in this country.
Lawyers must not only respond, but in doing so they must
litigate aggressively the right to adequate compensation, to the
funds necessary to investigate, and for the experts needed to
prepare and present a defense. Lawyers must also bring systemic
challenges to indigent defense systems. Attorneys for the poor—
whether in assigned counsel, contract, or public defender systems—
must refuse unreasonable caseloads and insist upon the training
and resources to do the job right. Where these problems make it
impossible for attorneys to discharge their constitutional and







inability to render effective assistance.
And lawyers must continue to bear witness to the shameful
injustices which are all too routine in capital cases. The uninformed and the indifferent must be educated and reminded of what
is passing for justice in the courts. The substandard quality of
counsel for the poor and the lack of a structure and funding for
indigent defense must become part of the debate on crime. The















representation for the defendant and, even if the costs are met,
whether there is anyone to defend those accused. Lawyers and law
students need to be reminded that there continue to be people with

Page 59

desperate, unmet needs for competent representation.238 They need
to be informed that the protections of the Bill of Rights are










disadvantaged persons facing the death penalty. The danger of
silence is not only that lawyers will be unaware of the need, but
also that many in society will mistakenly assume that there is a
properly working adversary system in the criminal courts.
It is only by the witness of those who observe the injustices
in capital cases firsthand that others in society can be accurately informed. This knowledge may prompt questions about the
system and its limits such as: whether the quest for vengeance receives too high a priority over the pursuit of justice in the
courts; whether criminal courts should be allowed to dispatch
people to their deaths without providing capable lawyers or even
one penny for the investigators and experts necessary to present
evidence that is constitutionally indispensable to the punishment








accused of crimes should continue to be denied the protections of
the Bill of Rights under the procedural default doctrines because
of the ineptness of lawyers they had no voice in choosing; whether
the assignment of lawyers to defend the poor should be made by
judges who must keep one eye on the next election and, with the
other, often wink at the Constitution; and whether courts should
continue to demean the Sixth Amendment by employing the Strickland

v. Washington standard for “legally effective counsel.”
These questions must be raised vigorously until courts and
leaders of the bar realize that the judgments of the criminal
courts cannot be seen as legitimate and entitled to respect so

See, e.g., Stephen B. Bright, In Defense of Life:
Enforcing the Bill of Rights on Behalf of Poor, Minority and
Disadvantaged Persons Facing the Death Penalty, 57 MO. L. REV. 849
Page 60

long as such poor quality of representation is tolerated. It is
only by dealing squarely with these questions that there is hope
that the courts will face reality and deliver on the promise of

Powell and Gideon instead of indulging in wishful thinking and
hollow pronouncements about the right to counsel. One must hope
that a frank discussion of the deficiencies of the system will
prompt courts to take their eyes off the embarrassing target of
mediocrity and take aim at a full measure of justice for all
citizens, especially those whose lives and freedom hang in the
balance. One must also hope that some prosecutors, who recognize a
higher calling in seeing that justice is done and making the
adversary system work than in simply getting convictions and death
sentences against inept lawyers, will add their voices regarding
the need for adequate representation and limits on the power of
the courts. And finally, some law schools must respond and prepare
students better for defending criminal cases.








created a presumption of incompetence of counsel where provision
of indigent defense services are so lacking that defendants are
not likely to be receiving effective representation.239 Unless the
state is able to rebut the presumption at a pretrial hearing, a
trial court is not to let the prosecution go forward until the
defendant is provided with reasonably effective counsel.240 This
approach responds much better to the reality of representation for
indigents than Strickland. Nevertheless, Justice Dennis pointed
out that the court could have done more:

This court should establish standards by setting limits

6WDWH Y 3HDUW  6R G   /D 


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attorneys, by requiring a minimum number of investigators to be assigned to each [public] defender, and by







torney. If a defendant demonstrates further error due
to funding and resource deficiencies, the courts should
be instructed to view the harm as state-imposed error,
which would require reversal of the conviction unless
the state demonstrates that the error was harmless.241

If systemic reforms are not attainable, other state courts










prohibit the prosecution from going forward in the absence of
competent counsel. In addition, as long as trial judges remain in
the business of appointing defense counsel, conscientious judges
who are concerned about fairness can order the appointment of
experienced, competent lawyers, and just compensation at enhanced
rates for those lawyers. Trial judges could obtain the services of
the best members of the profession, those equal to the task of
handling the highest stakes in our legal system, but whose time
generally is spent in more lucrative pursuits. The appointment of
the top litigators, managing partners, and bar leaders from firms







Houston, and Dallas to defend capital cases would undoubtedly
change the quality of indigent defense representation in those
areas. It is remarkable that courts do not call upon those lawyers
to respond to the need.242 In addition to introducing litigation









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skills to the cases, the involvement of such lawyers might also
result in some of them bringing their considerable power and
influence to bear upon the systemic problems, if for no other
reason than to avoid future appointments.
Such efforts, while urgently needed, will assure competent
representation to only a small percentage of those facing death











accomplish. In the meantime, many will continue to be sentenced to


















defending a capital case and are denied the resources to do the











consequences of the failure of the legislatures and the judiciary
to discharge their constitutional responsibilities.
The death penalty will continue to be imposed and new capital
statutes enacted with the continuing promise that efforts will be
made to improve the quality of counsel in the future. But this is























Moreover, the promise of adequate counsel is continually broken.
It has been over sixty years since the Supreme Court held in

Powell v. Alabama that those accused in Scottsboro and all poor










capital cases than merely being accompanied to their trials by a
member of the bar. Yet the representation in many trials today is
no better than that provided to the accused in Scottsboro in 1931.
This longstanding lack of commitment to counsel for the poor is
one of the many reasons that the effort to achieve fairness and





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consistency in the administration of the death penalty is “doomed
to failure.”243

Courts have issued many pronouncements about the importance











acknowledge that most state governments are unwilling to pay for
an adequate










Unfortunately, the Supreme Court has not been vigilant in enforcing the


of Powell and

Gideon. Its acceptance of the

current quality of representation in capital cases as inevitable
or even acceptable demeans the Sixth Amendment. It undermines the


Callins v. Collins, 62 U.S.L.W. 3546 (U.S. Feb. 22, 1994)
Justice Blackmun concluded that 20 years of
“tinker[ing] with the machinery of death” by the Supreme Court had
failed to achieve “the constitutional goal of eliminating
arbitrariness and discrimination from the administration of
death.” He observed “a system that we know must wrongly kill some
defendants, a system that fails to deliver the fair, consistent,
and reliable sentences of death required by the Constitution.” As
we have seen, all too often the accused does not receive the
process that Justice Blackmun hoped would accompany a decision to
impose death:
We hope, of course, that the defendant whose life is at
risk will be represented by competent counsel—someone
less-than-vigorous defense truly could have fatal
consequences for the defendant.
We hope that the
attorney will investigate all aspects of the case,
follow all evidentiary and procedural rules, and appear
before a judge who is still committed to the protection
of defendants' rights even now, as the prospect of
meaningful judicial oversight has diminished.
In the
same vein, we hope that the prosecution, in urging the
penalty of death, will have exercised its discretion
wisely, free from bias, prejudice, or political motive,
and will be humbled, rather than emboldened, by the
awesome authority conferred by the State.
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judgments. No poor person accused of any crime should receive the
sort of representation that is found acceptable in the criminal
courts of this nation today, but it is particularly indefensible
in cases where life is at stake. Even one of the examples of
deficient representation described in this Essay is one more than
should have occurred in a system of true justice.
Providing the best quality representation to persons facing
loss of life or imprisonment should be the highest priority of
legislatures, the judiciary, and the bar. However, the reality is
that it is not. So long as the substandard representation that is
seen today is tolerated in the criminal courts, at the very least,
this lack of commitment to equal justice should be acknowledged
and the power of courts should be limited. So long as juries and
judges are deprived of critical information and the Bill of Rights
is ignored in the most emotionally and politically charged cases
due to deficient legal representation, the courts should not be
authorized to impose the extreme and irrevocable penalty of death.
Otherwise, the death penalty will continue to be imposed, not upon
those who commit the worst crimes, but upon those who have the
misfortune to be assigned the worst lawyers.

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